High Court of KeralaSingle Judge2015-08-04Disposal of the Criminal Revision Petition in t...

Ali Edayerath v. State of Kerala and E.P. Haris

Case / Petition Number:Crl.R.P. No.947 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2015-08-04
Court Decision / Holding: Criminal Revision Petition disposed of: (i) one day simple imprisonment till rising of the court; (ii) ₹2,00,000/- to be paid as compensation under Sec.357(3) Cr.P.C. within six months; (iii) appearance before Trial Court to suffer substantive sentence by 4-2-2016 with proof of payment; (iv) in default, two months additional imprisonment; (v) any prior deposits credited toward the balance; the court did not re-appreciate evidence and upheld the lower courts’ findings.
Final Disposition: Disposal of the Criminal Revision Petition in terms of the order (subject to six months to pay compensation and the specified conditions).

Parties to the Case

Appellants / Petitioners

Ali Edayerath

Respondents

State of Kerala represented by Public Prosecutor
E.P. Haris

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K. Mohanakannan
• Smt. A.R. Pravitha

Counsels for Respondents

• Public Prosecutor, State of Kerala
• Sri Jibu P. Thomas
• Sri P. Samsudin
• Sri K.C. Antony Mathew
• Sri Jithin Lukose

Case Synopsis & Summary

The petitioner, Ali Edayerath, challenges the concurrent convictions under Section 138 of the Negotiable Instruments Act, 1881, and the connected sentence recorded in the Criminal Appeal No. 71 of 2012 before the Additional Sessions Judge, Manjeri, and the separate judgment in CC 467/2009 before the JMFC, Perinthalmanna. The complainant alleged that a loan of ₹1,95,000 was advanced to purchase a car and that Ext. P1 cheque, issued in discharge, was dishonoured for lack of funds. The defence claimed no direct transaction with the complainant, asserting instead that a blank cheque had been given in a vehicle transaction to the brother of the complainant, with the cheque subsequently misappropriated. The trial court held that presumptions under Sections 118(a) and 139 NI Act were established in favour of the complainant and convicted the accused. The High Court found no perversity in the lower courts’ appreciation and confirmed the concurrent findings of conviction. In addressing sentence, the court relied on Supreme Court and High Court precedents emphasizing that the offence under Sec.138 NI Act resembles a civil wrong with criminal overtones and that the remedy should prioritize restitution through compensation rather than punitive measures. Accordingly, six months’ time was granted to pay ₹2,00,000 as compensation, with a nominal one-day imprisonment and a suspended substantive sentence, plus a default provision for additional imprisonment if the amount is not paid. The revision petition was disposed of subject to these terms.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 118(a) of the Negotiable Instruments Act, 1881Section 139 of the Negotiable Instruments Act, 1881Section 357(3) of the Cr.P.C.

Legal Doctrines & Maxims

Offence under Section 138 NI Act is almost in the nature of civil wrong with criminal overtones (Kaushalya Devi Massand v. Roopkishore, AIR 2011 SC 2566)
Direction to pay compensation by way of restitution should be practical and realistic; compensatory remedy has priority over punitive aspects (Vijayan v. Baby, 2011(4) KLT 355)
Presumptions under Sections 118(a) and 139 NI Act in favour of the complainant

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the concurrent findings of conviction are perverse or suffer from erroneous appreciation of evidence; he seeks re-appreciation of the evidence, which is impermissible in revisional jurisdiction unless perversity is shown. He further submits that the sentence is disproportionate to the gravity of the offence and requests relief by extending time to pay the compensation once the court is satisfied with the financial constraints; he relies on precedents emphasizing the restorative and compensatory nature of the remedy under Section 138 NI Act.

Contentions of Respondents

The respondents defend the conviction and sentence, urging that the lower courts rightly evaluated the evidence and applied the presumptions in favour of the complainant under Sections 118(a) and 139 NI Act. They contend that the offence, though criminal in form, must be addressed in a manner that aligns with the civil-like recovery objective and that the sentence should reflect the severity of the fraud in the cheque transaction. The respondents rely on established jurisprudence to support the adequacy of restitution and compliance with statutory presumptions.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Cited to support that Sec.138 NI Act offences resemble civil wrongs with criminal overtones and that compensation can meet ends of justice.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to emphasize that restitution/restitutional compensation should be practical and prioritized over punitive measures.

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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** **TUESDAY, THE 4TH DAY OF AUGUST 2015/13TH SRAVANA, 1937** **Crl.Rev.Pet.No. 947 of 2015** ## **--------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO. 71/2012 of ADDITIONAL SESSIONS COURT - III, MANJERI DATED 16-08-2014** **AGAINST THE JUDGMENT IN CC 467/2009 of J.M.F.C.-I, PERINTHALMANNA DATED 24-1-2012** ## **REVISION PETITIONER:** **-------------------** **ALI EDAYERATH, S/O. EDAYERATH KUNHAPPA, THENKARA P.O., MANNARKKAD, PALAKKAD DISTRICT.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** **RESPONDENTS/ACCUSED AND STATE: ------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. E.P. HARIS, S/O. ERUPALLIYELIL ABU, ERASSERI HOUSE, PARAL P.O., THOOTHA, MALAPPURAM DISTRICT-670 671.** **R1 BY PUBLIC PROSECUTOR SRI. JIBU P. THOMAS R2 BY ADV. SRI.P.SAMSUDIN ADV. SRI.K.C.ANTONY MATHEW ADV. SRI.JITHIN LUKOSE** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04-08-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No.947 of 2015 -----------------------------------------------------Dated this the 4[th] day of August, 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.71 of 2012 on the files of the Additional Sessions Judge-III, Manjeri. The above appeal was filed challenging the judgment whereby the Revision Petitioner was found guilty of the said offence, passed in C.C.No.467 of 2009 on the files of the Judicial First Class Magistrate's Court-I, Perinthalmanna. According to the impugned judgment, the Revision Petitioner stands sentenced **Crl.R.P. No.947 of 2015** -: 2 :- to undergo simple imprisonment for three months under Sec.138 of the N.I. Act and to pay a compensation of `2 lakhs to the complainant under Sec.357(3) of the Cr.P.C. In default of payment of compensation, he shall undergo simple imprisonment for two months. 2. The complainant's case is that the accused had borrowed an amount of `1,95,000/- from him to purchase an Innova car from his brother Mohammed Basheer and in discharge of the said liability, Ext.P1 cheque was issued for the said amount. But, on presentation, the said cheque was dishonoured and returned for want of sufficient funds. 3. In defence, the accused contended that he had no transaction with the complainant; but his specific case was that the accused had vehicle transaction with the brother of the complainant and in that transaction, a blank cheque was given by the accused in favour of the brother of the complainant ## **Crl.R.P. No.947 of 2015** -: 3 :- and the complainant had misappropriated the above said cheque and filed this false case against him. Though he raised such a contention, no evidence had been adduced to substantiate the said contention so as to rebut the presumptions under the N.I. Act which stood in favour of the complainant. Therefore, the court below can be justified in finding that the accused has miserably filed to rebut the presumptions under Secs.118(a) and 139 of the N.I. Act which stood in favour of the complainant. 4. 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 **Crl.R.P. No.947 of 2015** -: 4 :- impropriety in the findings whereby the trial court convicted him. 5. 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. 6. 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, if this revision is found meritless, as he is unable to raise the said amount forthwith due to paucity of funds. 7. The Supreme Court, in the decision in **Crl.R.P. No.947 of 2015** -: 5 :- 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. 8. Having regard to the nature and gravity of the offence, in the light of the decisions quoted above and submission made at the Bar, seeking some time 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 **Crl.R.P. No.947 of 2015** -: 6 :- 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 `2,00,000/- (Rupees Two lakhs only) to the complainant/1[st] 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 4/2/2016 with sufficient proof to show payment of compensation. iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of two months. v. If he had deposited any amount in the trial court towards compensation or fine, the same shall be given credit to and the balance alone needs to be paid as ## **Crl.R.P. No.947 of 2015** -: 7 :- compensation or fine, as the case may be, and in that event, the complainant is allowed to realise such deposit from the court. The Criminal Revision Petition is disposed of accordingly. ## **Sd/-** ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge