Dr.Karunan Kannan Poyilil v. State Of Kerala
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE 9TH DAY OF JUNE 2015/19TH JYAISHTA, 1937 Crl.Rev.Pet.No. 692 of 2015 () ------------------------------- CRL.A 199/2014 of ADDL.DISTRICT & SESSIONS COURT - V, THIRUVANANTHAPURAM DATED 13-03-2015 ST 1366/2008 of ADDL.C.J.M., THIRUVANANTHAPURAM DATED 24-05-2014 REVISION PETITIONER(S)/APPELLANT/ACCUSED:
------------------------------------------ DR.KARUNAN KANNAN POYILIL S/O.CHATTU M, NEPHROLOGIST, MEDICAL COLLEGE THIRUVANANTHAPURAM BY ADVS.SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA RESPONDENT(S)/RESPONDENTS/STATE & COMPLAINANT: -----------------------------------------------
1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 682031
2. M/S.CANARA BANK, ULLOOR BRANCH, THIRUVANANTHAPURAM, REPRESENTED BY SENIOR MANAGER V CHANDRASEKHARAN.
R1 BY PUBLIC PROSECUTOR SRI.JUSTINE JACOB.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
STU
K.HARILAL, J.
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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.199/2014 on the files of the Additional District & Sessions Judge-V, Thiruvananthapuram. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.1366/2008 on the files of the Additional Chief Judicial Magistrate's Court, Thiruvananthapura. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one day till rising of the court and to pay fine of 10,00,000/-. In ₹ default, the accused shall undergo simple imprisonment for
a period of three months. If the fine amount is realised, it shall be given to the complainant as compensation under Section 357(1) of the Code of Criminal Procedure.
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/2nd respondent had successfully discharged 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 2nd respondent. So also, it is found that the debt due to the 2nd respondent was a legally enforceable debt and Ext.P2 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 Section 138 of the N.I. Act. The learned counsel further sought for sometime 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 submission made at the Bar, 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. The Revision Petitioner shall pay a fine of Rs.10,00,000/- (Rupees Ten lakhs only) within a period of six months from today and the same shall be given to the 2nd respondent/complainant under Section 357(1)(b) of the Code of Criminal Procedure.
iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 9th December, 2015 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months. The Criminal Revision Petition is disposed of accordingly.
K.HARILAL, JUDGE.
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