Tenetowl LogoTenetowl
High Court of KeralaSingle JudgeCriminal Revision Petition disposed of; the sen...

Abdul Azeez v. K.A. Mohanan & State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 3136 of 2004 (B)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Harilal
Judgment Date
2013-08-23
Court Decision / Holding
The Criminal Revision Petition is disposed of accordingly: i) The Revision Petitioner shall undergo simple imprisonment for one day till rising of the court. ii) The Revision Petitioner shall pay Rs.55,000 to the complainant as compensation within three months from today. iii) The Revision Petitioner shall appear before the Trial Court to suffer the substantive sentence on or before 23/11/2013 with proof of payment; iv) In default, the petitioner shall undergo four months of simple imprisonment. v) Any amount deposited before the trial court towards compensation shall be credited; the balance must be paid.
Final Disposition
Criminal Revision Petition disposed of; the sentence is reduced to one day imprisonment till rising of the court; compensation ordered; time to pay; appearance required; credit for any deposited amount.

Parties to the Case

Appellants / Petitioners

  • Abdul Azeez, S/O. Kunhi Moidu Haji, Azhiyat House, Preakam Amsoom, Chavakkad

Respondents

  • K.A. Mohanan, S/O. K. Appunni, Illath Parambil Hajiyar Quarters, Paluvai P.O., Chakkankandam, Chavakkad Taluk
  • State of Kerala, represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. V. V. Nandagopal Nambiar
  • • Sri. T. P. Pradeep

Counsels for Respondents

  • • Sri. P. Ramachandran
  • • Public Prosecutor Smt. Seena Ramakrishnan

Case Synopsis & Summary

This is a Kerala High Court Criminal Revision Petition filed by Abdul Azeez challenging the concurrent conviction under Section 138 NI Act and the sentence imposed by the I Additional Sessions Judge, Thrissur, and the Judicial First Class Magistrate Court, Chavakkad. The appellate court found him guilty of dishonour of cheque and sentenced him to simple imprisonment for one month and to pay Rs. 55,000 as compensation to the complainant, with a default sentence of four months. The revision petition contends there has been no perversity in the accumulation of evidence and seeks re-appreciation only to the extent of sentencing, arguing that the punishment is disproportionately harsh and that the offender should have a chance to comply with the compensation order. The respondents maintain that the revisional jurisdiction does not permit re-appreciation of evidence where concurrent findings exist, and that the debt evidenced by the cheque is legally enforceable, with presumption in favour of the complainant under Sections 118(a) and 139 of the NI Act. The court cites Supreme Court and High Court dicta emphasizing the civil nature of Section 138 actions and prioritizing the compensatory remedy over punitive aspects, and ultimately exercises its discretion to modify the sentence while maintaining conviction. The result is a partial relief to the petitioner within a structured timetable for payment and appearance in court.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Sections 118(a) and 139 of the Negotiable Instruments Act, 1881

Legal Doctrines & Maxims

  • Offence under Section 138 NI Act is almost in the nature of civil wrong with criminal overtone; imposition of fine payable as compensation suffices.
  • Compensation/restoration should be practical and realistic; priority of compensatory remedy over punitive measures in NI Act prosecutions.
  • Presumption in favour of the complainant under Sections 118(a) and 139 NI Act

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that there is no perversity in the evidence and seeks re-appreciation only on sentencing; urges that the punishment is too harsh and should be reduced; expresses willingness to pay compensation within a reasonable time and requests relaxation to avoid immediate incarceration; relies on Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby to justify prioritizing compensation and realistic restitution over rigid punitive measures.

Contentions of Respondents

Respondents contend revisional jurisdiction cannot re-appreciate evidence where concurrent findings exist; the conviction is supported by the evidence and presumption in favour of the complainant under NI Act remains; the debt is legally enforceable and the cheque was issued in discharge of that debt; urges the court to maintain the concurrent findings and not re-open the evidence.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Kaushalya Devi Massand v. RoopkishoreAIR 2011 SC 2566PositiveCourt cites the decision to support treating Section 138 NI Act offences as largely civil in nature with compensation as an adequate remedy.
Vijayan v. Baby2011(4) KLT 355PositiveCourt cites the decision to emphasize practical, realistic restitution and priority of compensatory relief.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Abdul Azeez v. K.A. Mohanan & State of Kerala and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 23RD DAY OF AUGUST 2013/1ST BHADRA, 1935** ## **Crl.Rev.Pet.No. 3136 of 2004 (B)** **----------------------------------------** ## **AGAINST THE JUDGMENT IN CRL.A.NO. 536/2002 of SESSIONS COURT, THRISSUR DATED 13-08-2004** **AGAINST THE JUDGMENT IN CC NO.347/1999 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD DATED 12-11-2002** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **ABDUL AZEEZ, S/O.KUNHI MOIDU HAJI, AZHIYAT HOUSE, PREAKAM AMSOM, CHAVAKKAD.** **BY ADVS.SRI.V.V.NANDAGOPAL NAMBIAR SRI.T.P.PRADEEP** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **-----------------------------------------------------------------------------------** **1. K.A.MOHANAN, S/O. K.APPUNNI, ILLATH PARAMBIL HAJIYAR QUARTERS, PALUVAI P.O. CHAKKANKANDAM, CHAVAKKAD TALUK.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA.** **R1 BY ADV. SRI.P.RAMACHANDRAN R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MJL** ## **Crl.Rev.Pet.No. 3136 of 2004 (B)** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE-1: TRUE COPY OF THE ORDER IN CRL.M.A. NO.14256/04 IN CRL.R.P.NO.3136/04** **ANNEXURE-2: TRUE COPY OF TH EXTRACT OF THE PASSPORT EVIDENCING DEPARTURE OF PETITIONER ON 07.12.04** ## **RESPONDENTS' ANNEXURES: NIL** **/TRUE COPY/** **P A TO JUDGE** **MJL** ## **K. HARILAL, J.** ## **------------------Crl.R.P. No.3136 of 2004** ## **--------------------------------Dated this the 23[rd] day of August, 2013** ## **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.536 of 2002 on the files of the I Additional Sessions Judge, Thrissur. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.347 of 1999 on the files of the Judicial First Class Magistrate Court, Chavakkad. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one month and directed to pay a sum of Rs.55,000/-(Rupees Fifty Five Thousand only) as compensation to the complainant/1[st] respondent. In default he shall undergo sentence of simple imprisonment for four months. 2. The learned counsel for the Revision Petitioner **Crl.R.P. No.3136 of 2004 2** 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. The courts below had concurrently found that the complainant/1[st] 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 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. 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 **Crl.R.P. No.3136 of 2004 3** had been arrived. Therefore, I am not inclined to reappreciate entire evidence once again and I confirm the concurrent findings of conviction. 3. The counsel for the Revision Petitioner submits that challenge under this Revision is confined to sentence only. The sentence imposed on the Revision Petitioner is disproportionate with the gravity and nature of the offence. He further submits that the Revision Petitioner is willing to pay the compensation as ordered by the court below; but he is unable to raise the said amount forthwith due to paucity of funds. But he is ready to pay the compensation within three months. 4. Similarly, the substantive sentence imposed on the revision petitioner is too harsh and excessive. The learned counsel for the revision petitioner prayed for modifying the substantive sentence of imprisonment also. If the revision petitioner is incarcerated for a period as ordered by the courts below, the entire family will put put in great hardship. **Crl.R.P. No.3136 of 2004** **4** 5. 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. 6. 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 within three months, I am inclined to grant three months time to pay the compensation. Similarly, the substantive sentence of simple **Crl.R.P. No.3136 of 2004 5** imprisonment for one month is reduced and modified to simple imprisonment for one day till rising of the court. Consequently, this Revision Petition is liable to be 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 Rs.55,000/(Rupees Fifty Five Thousand only) to the complainant/1[st] respondent as compensation within a period of three 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 23/11/2013 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of four months. v. If the Revision Petitioner had deposited any amount before the trial court towards compensation the same shall be given credit to and the balance alone need **6** ## **Crl.R.P. No.3136 of 2004** to paid as compensation. The complainant/1[st] respondent is allowed to withdraw the amount, if any, which is deposited by the accused before the trial court. The Criminal Revision Petition is disposed of accordingly. Sd/- **K.HARILAL JUDGE** MJL