Pushpavalli Sreejith v. State Of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 3RD DAY OF JUNE 2015/13TH JYAISHTA, 1937 CRL.REV.PET.NO. 631 OF 2015 (E1) ------------------------------- CRL.A 184/2013 OF ADDL. DISTRICT & SESSIONS COURT, VADAKARA CC 10/2013 OF J.F.C.M.COURT-II, VADAKARA ....

REVISION PETITIONER/APPELLANT/ACCUSED:

------------------------------- PUSHPAVALLI SREEJITH, W/O. SREEJITH, TEACHER, CHAITHANYA VOCATIONAL TRAINING CENTRE, TELLICHERY-670101, KANNUR.

BY ADV. SRI.MOHANAN V.T.K.

RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT: ---------------------

1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

2. SHEEJA A.K., AGED 28 YEARS, W/O. PAVITHRAN, EDAYATHKANDI THAZHE KUNIYIL HOUSE, NADAKKUTHAZHA POST, VATAKARA TALUK, KOZHIKODE. R1 BY PUBLIC PROSECUTOR SRI. JIBU P. THOMAS THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: OKB

K.HARILAL, J.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Crl.R.P. No.631 of 2015 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 3rd day of June, 2015.

O R D E R

This revision petition is filed challenging the concurrent findings of conviction entered and the sentence imposed on the revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act') in Criminal Appeal No.184/2013 on the files of the court of the Additional District & Sessions Judge, Vadakara. The above appeal was filed challenging the judgment finding that the revision petitioner is guilty of the said offence, passed in C.C.No.10/2013 on the files of the Judicial First Class Magistrate's Court-II, Vadakara. According to the impugned judgment, the revision petitioner was sentenced to undergo simple imprisonment for one day till rising of the court and to pay a fine of Rs.1,36,750/-and in default, to undergo simple

Crl.R.P.631/15 :2: imprisonment for three months. If the fine amount is realised, the same was ordered to be given to the complainant as compensation under Section 357(1)(b) of the Cr.P.C.

2.The learned counsel for the revision petitioner reiterated the contentions which were raised before the courts below and got rejected concurrently. The learned counsel urged for a re-appreciation of evidence once again, which is not permissible under the revisional jurisdiction unless any kind of perversity is found in the appreciation of evidence. The revision petitioner failed to point out any kind of perversity in the appreciation of evidence or illegality or impropriety in the findings whereby the trial court convicted her.

3.The courts below had concurrently found that the complainant/2nd respondent had successfully discharged the initial burden of proving execution and issuance of the cheque; whereas the revision

Crl.R.P.631/15 :3: petitioner had failed to rebut the presumption under Section 118(a) and 139 of the N.I. Act which stood in favour of the 2nd respondent. So also, it is found that the debt due to the 2nd respondent was a legally enforceable debt and Ext.P1 cheque was duly executed and issued in discharge of the said debt.

4.This Court is satisfied that the courts below had meticulously evaluated the evidence on record. I do not find any kind of illegality or impropriety in the said findings or perversity in appreciation of evidence, from which the above findings had been arrived at. Therefore, I am not inclined to reappreciate entire evidence once again and I confirm the concurrent findings of conviction.

5.At last, the learned counsel for the revision petitioner submits that the sentence imposed on the revision petitioner is disproportionate with the gravity and nature of the offence contemplated under Section 138 of the N.I. Act. The learned

Crl.R.P.631/15 :4: counsel further sought for some time to pay the fine as she is unable to raise the said amount forthwith due to paucity of funds.

6.The Supreme Court, in the decision in Kaushalya Devi Massand v. Roopkishore [AIR 2011 SC 2566], held that the offence under Section 138 of the N.I. Act is almost in the nature of civil wrong which has been given criminal overtone, and imposition of fine payable as compensation is sufficient to meet the ends of justice. Further, in Vijayan v. Baby [2011(4) KLT 355], Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic.

So, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect.

7.Having regard to the nature and gravity of the offence, in the light of the decisions quoted above

Crl.R.P.631/15 :5: and submission made at the Bar, expressing willingness to pay the fine, I am inclined to grant six months time to pay the fine. Consequently, this revision petition will stand disposed of subject to the following terms:

i.

The revision petitioner shall undergo simple imprisonment for one day till rising of the court.

ii. She shall pay a fine of Rs.1,36,750/- (Rupees One lakh thirty six thousand seven hundred and fifty only) within a period of six months from today and the same shall be given to the 2nd respondent/complainant as compensation.

iii.She shall appear before the Trial Court to suffer the substantive sentence of simple imprisonment as ordered above on or before 4/12/2015 with sufficient proof to show payment of fine.

iv. In default, she shall undergo simple imprisonment for a period of two months.

The Criminal revision petition is disposed of accordingly.

Sd/- K. HARILAL, JUDGE okb.