Aji Kumar K. v. Sree Gokulam Chits and Finance Company Limited and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 19TH DAY OF JUNE 2015/29TH JYAISHTA, 1937** **Crl.Rev.Pet.No. 745 of 2015** **----------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO. 221/2013 of ADDITIONAL SESSIONS COURT, NEYYATTINKARA DATED 15-05-2015.** **AGAINST THE JUDGMENT IN CC 106/2010 of JMFC-V, (SPECIAL COURT FOR MARKLIST CASES), THIRUVANANTHAPURAM, DATED 01-04-2013.** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** ## **-----------------------------------------** **AJI KUMAR K., AGED 38 YEARS, S/O. KRISHNAN NAIR, LEKSHMI NIVAS, TC NO.17/1217(10),SRA-1, SASTHA NAGAR, PANGODE, THIRUMALA P.O., THIRUVANANTHAPURAM.** ## **BY ADV. SRI.B.HARISH KUMAR** ## **RESPONDENT(S)/COMPLAINANT AND STATE:** ## **------------------------------------** **1. M/S.SREE GOKULAM CHITS AND FINANCE COMPANY LIMITED, REGISTERED OFFICE SREE GOKULAM TOWERS, 66 ARCOT ROAD, KODAMBHAKAM, CHENNAI-600 003, REPRESENTED BY ITS MANAGING DIRECTOR SRI.A.M. GOPALAN, THROUGH HIS POWER OF ATTORNEY HOLDER SRI. SURESH KUMAR, ASSISTANT BUSINESS MANAGER.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **R2 BY PUBLIC PROSECUTORSRI. JIBU P. THOMAS** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No.745 of 2015 -----------------------------------------------------Dated this the 19[th] 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.221 of 2013 on the files of the Additional Sessions Judge, Neyyattinkara. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.106 of 2010 on the files of the Judicial First Class Magistrate's Court-V, Thiruvananthapuram. According to the impugned judgment, the Revision Petitioner is sentenced to **Crl.R.P. No.745 of 2015** -: 2 :- undergo simple imprisonment for one day till rising of the court and to pay a fine of `2,14,000/-. In default of payment of fine, the accused will undergo simple imprisonment for a period of three months. The entire fine amount, if realised, shall be paid as compensation to the complainant under Sec.357(1) of the Cr.P.C. 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/1[st] respondent had successfully **Crl.R.P. No.745 of 2015** -: 3 :- 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 1[st] respondent. So also, it is found that the debt due to the 1[st] respondent was a legally enforceable debt and Ext.P3 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 **Crl.R.P. No.745 of 2015** -: 4 :- 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 to raise the said amount forthwith due to paucity of funds, if this revision petition is not admitted on the files of this Court. 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 **Crl.R.P. No.745 of 2015** -: 5 :- 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 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 a fine of `2,14,000/- (Rupees Two lakhs and fourteen thousand only) within a period of six months from today and the same shall be given to the 1[st] respondent/complainant as compensation under Sec.357(1)(b) 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 19/12/2015 with **Crl.R.P. No.745 of 2015** -: 6 :- 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. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge **Crl.R.P. No.745 of 2015** -: 7 :-