Shyny Thomas v. City Auto Finance Kothamangalam

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE K.HARILAL THURSDAY, THE 25TH DAY OF JUNE 2015/4TH ASHADHA, 1937 Crl.Rev.Pet.No. 787 of 2015 --------------------------- AGAINST THE JUDGMENT IN CRL.A.NO. 567/2013 of ADDITIONAL DISTRICT & SESSIONS COURT, MOOVATTUPUZHA DATED 24-10-2014 AGAINST THE JUDGMENT IN CC 278/2012 of JUDL. MAGISTRATE OF FIRST CLASS, KOTHAMANGALAM DATED 23-10-2013 REVISION PETITIONER/APPELLANT/ACCUSED:

-------------------------------------- SHYNY THOMAS, AGED 34 YEARS, S/O. THOMAS, KUTTIPPURATHU HOUSE, KANGAZHA P.O., PATHANADU, KOTTAYAM DISTRICT-686 541.

BY ADV. SRI.SANIL KUMAR RESPONDENT(S)/COMPLAINANT & STATE:

---------------------------------- 1.

CITY AUTO FINANCE, KOTHAMANGALAM, REPRESENTED BY ITS WORKING PARTNER SIJO JOSE, EDATHALA (H), OKKAL P.O.

2.

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

R2 BY PUBLIC PROSECUTOR SRI. JUSTINE JACOB THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

K. HARILAL, J.

------------------------------------------------------ ------------------------------------------------------ Dated this the 25th 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.567 of 2013 on the files of the Additional District and Sessions Judge, Muvattupuzha.

The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.278 of 2012 on the files of the Judicial First Class Magistrate's Court, Kothamangalam. According to the impugned judgment, the Revision Petitioner is

-: 2 :- sentenced to undergo imprisonment for one day till rising of the court and to pay a compensation of `87,400/- to the complainant under Sec.357(3) of the Cr.P.C. In default, to undergo simple imprisonment for one month.

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 some time to pay the compensation as he is unable

-: 4 :- 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, expressing willingness to pay the compensation, I am inclined to grant four

-: 5 :- 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 `87,400/- (Rupees Eighty seven thousand and four hundred only) within a period of four months from today to the 1st respondent/complainant as compensation under Sec.357(3) of the Cr.P.C.

iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 26/10/2015. with sufficient proof to show payment of compensation.

iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of one month.

v. Warrant, if any, pending in execution

-: 6 :- of the sentence imposed on the revision petitioner under the impugned judgment, shall be kept in abeyance for a period of four months from today.

The Criminal Revision Petition is disposed of accordingly.

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