M.K.Ansari v. K.M.Muhamed James

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. 663 of 2015 ---------------------------- AGAINST THE JUDGMENT IN CRL.A.NO. 272/2014 of ADDITIONAL SESSIONS COURT-II (SPL. COURT), KOTTAYAM DATED 10-03-2015 AGAINST THE JUDGMENT IN ST 100/2013 of J.M.F.C. - II, ETTUMANUR DATED 12-12-2014.

REVISION PETITIONER(S)/APPELLANT/ ACCUSED:

------------------------------------------- M.K.ANSARI, S/O. KUNJUNJU, AZHAKUSSERIL HOUSE, VADUTHALA JETTY, AROOKUTTY, ALAPPUZHA BY ADV. SRI.M.J.THOMAS RESPONDENT(S)/RESPONDENTS./ COMPLAINANTS & STATE: ------------------------------------------------

1. K.M.MUHAMED JAMEER, JASELA MANZIL, AHTIRAMPUZHA, KOTTAYAM-686 562.

2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R2 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:

K. HARILAL, J.

------------------------------------------------------ ------------------------------------------------------ Dated this the 3rd day of June, 2015

ORDER

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.272 of 2014 on the files of the Additional Sessions Judge-II (Special), Kottayam. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.100 of 2013 on the files of the Judicial First Class Magistrate's Court-II, Ettumanoor. According to the impugned judgment, the Revision Petitioner is sentenced to undergo

-: 2 :- imprisonment till rising of the court and to pay `1,64,000/- as compensation to the complainant under Sec.357(3) of the Cr.P.C. In default of payment, he shall undergo simple imprisonment for 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 him.

3. The courts below had concurrently found that the complainant/1st respondent had successfully discharged initial burden of proving execution and issuance of the cheque; whereas the Revision

-: 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 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. Therefore, I am not inclined to re-appreciate 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 Sec.138 of the N.I. Act. The learned counsel further sought for

-: 4 :- some time to pay the compensation as he 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 vs. 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 and

-: 5 :- submission made at the Bar, expressing willingness to pay the compensation, I am inclined to grant six months time to pay the compensation. 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. The Revision Petitioner shall pay `1,64,000/- (Rupees One lakh and sixty four thousand only) to the 1st respondent as compensation under Sec.357(3) of the Cr.P.C. within a period of six months from today.

iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 3/12/2015 with sufficient proof to show payment of compensation.

iv. In default, the Revision Petitioner

-: 6 :- shall undergo simple imprisonment for a period of three months.

The Criminal Revision Petition is disposed of accordingly.

Sd/- (K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge