Sherly v. N. Sasidharan Achary

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 27TH DAY OF MAY 2015/6TH JYAISHTA, 1937 Crl.Rev.Pet.No. 633 of 2015 (E1) ------------------------------- AGAINST THE JUDGMENT IN CRL.A 269/2013 of ADDL. DISTRICT & SESSIONS COURT - V, KOLLAM DATED 06-08-2014 AGAINST THE JUDGMENT IN ST 5077/2010 of J.M.F.C.-I, KOLLAM DATED 14-08-2013 ....

REVISION PETITIONER(S)/APPELLANT/ACCUSED:

---------------------------------------- SHERLY,AGED 42 YEARS, W/O.CHRISTOPHER, KOTTARATHAZHVARAM, PWD PUTHUVAL, THEVALLY P.O., KOLLAM - 691 009.

BY ADVS.SRI.BIJU ABRAHAM SRI.J.G.SYAMNATH RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------

1. N. SASIDHARAN ACHARY, S/O.NANAPPAN ACHARY, SHYAM NIVAS, MATHILIL P.O. KOLLAM - 691 601.

2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 31.

R1 BY ADV. SRI.K.SIJU R1 BY ADV. SMT.NIMA JACOB R2 BY PUBLIC PROSECUTOR SRI. JIBU P. THOMAS THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27-05-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

OKB

K.HARILAL, J.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Crl.R.P. No.633 of 2015 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 27th day of May, 2015.

O R D E R

1.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.269/2013 on the files of the court of the V Additional District & Sessions Judge, Kollam. The above appeal was filed challenging the judgment finding that the revision petitioner is guilty of the said offence, passed in S.T.No.5077/2010 on the files of the Judicial First Class Magistrate's Court-I, Kollam. According to the impugned judgment, the revision petitioner was sentenced to undergo simple imprisonment for one

Crl.R.P.633/15 (2) day till rising of the court and to pay a fine of Rs.1,55,000/-, which, if realised, shall be paid to the complainant as compensation under Section 357 of the Cr.P.C. and in default to undergo simple imprisonment for further three months.

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

Crl.R.P.633/15 (3) complainant/1st respondent had successfully discharged the initial burden of proving execution and issuance of the cheque; whereas the revision petitioner had failed to rebut the presumption under Section 118(a) and 139 of the N.I. Act which stood in favour of the 1st respondent. So also, it is found that the debt due to the 1st 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.

Crl.R.P.633/15 (4) 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 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

Crl.R.P.633/15 (5) 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 and submission made at the Bar, expressing willingness to pay the fine, I am inclined to grant five 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.1,55,000/- (Rupees One lakh fifty five thousand only) and the same shall be given to the 1st respondent/complainant as compensation, under Section 357(1)(b) of the Cr.P.C., within a period of five months from today.

iii.She shall appear before the Trial Court to suffer the substantive sentence of simple

Crl.R.P.633/15 (6) imprisonment as ordered above on or before 28.10.2015 with sufficient proof to show payment of compensation.

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

The Criminal revision petition is disposed of accordingly.

Sd/- K. HARILAL, JUDGE okb.