High Court of KeralaSingle Judge2013-08-27Disposed of accordingly.

A.P. INDIRA v. STATE OF KERALA & P.K. PRASANNAKUMARI

Case / Petition Number:CRRP No.1717/2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-08-27
Court Decision / Holding: Criminal Revision Petition disposed of: (i) One day simple imprisonment till rising of the court; (ii) Compensation Rs. 1,10,000 to be paid within five months under Section 357(3) Cr.P.C.; (iii) Petitioner to appear before the Trial Court for substantive sentence by 27/01/2014 with proof of payment; (iv) In default, three months’ simple imprisonment.
Final Disposition: Disposed of accordingly.

Parties to the Case

Appellants / Petitioners

A.P. Indira

Respondents

The State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam
P.K. Prasan Nakumari

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Ranjit Babu

Counsels for Respondents

• Public Prosecutor Sri. Liju V. Stephen

Case Synopsis & Summary

This High Court of Kerala, Ernakulam, hears a criminal revision filed by A.P. Indira challenging the concurrent findings of conviction under Section 138 of the Negotiable Instruments Act, 1881, and the sentence imposed by the II Additional Sessions Judge, Palakkad, in Cr. App. No.146/2011, arising from ST No.181/2009 of the Judicial First Class Magistrate Court-II, Palakkad. The conviction rested on the presumption that the cheque issued by the petitioner was in discharge of a legally enforceable debt; the appellate and trial courts held the debt to be valid and legally enforceable, with the cheque properly executed to discharge it. The revision petition argues for reappreciation of evidence, but the court notes that revisional scrutiny is limited to perversity in appreciation; no such perversity was shown. The court relies on established decisions that emphasise the civil character of the offence with criminal overtone and the need to prioritize restitution, referencing Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC 2566) and Vijayan v. Baby (2011(4) KLT 355). With the complainant absent and the petitioner willing to pay compensation, the court grants five months to pay Rs.1,10,000 and imposes one day of simple imprisonment, plus a conditional plan for appearance and continued payment. The petition is disposed of on these terms, effectively sustaining conviction but moderating the sentence to emphasize restitution over punishment.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Offence under Section 138 of the NI Act is almost civil in nature with criminal overtones.
Restitution via compensation should be practical and realistic in NI Act prosecutions.
Compensatory aspect of remedy should be given priority over punitive aspect in NSI Act cases.

Submissions & Arguments

Contentions of Appellants / Petitioners

The counsel for the Revision Petitioner contended for reappreciation of the evidence, arguing that the revision court should reexamine the record only for perversity, which was not satisfied in the present case. The petitioner acknowledged the conviction but urged that the sentence was disproportionate to the gravity of the offense and that compensation could be paid within a reasonable period. The core argument was that the revisional court should exercise restraint and that the law’s remedial focus—compensation and restitution—be given priority over punitive measures.

Contentions of Respondents

The respondents’ position, reflected by the trial and appellate courts’ findings, was that the complainant properly discharged the initial burden of proving execution and issuance of the cheque; the presumption under Sections 118(a) and 139 of the NI Act stood in favor of the complainant, and the debt was legally enforceable. They relied on the established case law supporting the conviction and the linked order of compensation under Section 357(3) Cr.P.C., arguing that the sentence and order were appropriate and consistent with the statutory framework.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Cited to support the view that the offence under Section 138 of the NI Act is almost civil in nature with criminal overtones.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to support the proposition that restitution/compensation should be practical and realistic in NI Act prosecutions.

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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 27TH DAY OF AUGUST 2013/5TH BHADRA, 1935** ## **Crl.Rev.Pet.No. 1717 of 2013** ## **--------------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO.146/2011OF II ADDL.SESSIONS COURT,PALAKKAD DATED 17-11-2012** **....** **AGAINST THE ORDER/JUDGMENT IN ST.CASE NO.181/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II,PALAKKAD DATED 28-02-2011** **... REVISION PETITIONER/APPELLANT/ACCUSED:** **------------------------------------------------------------------------------** ## **A.P. INDIRA, AGED 42 YEARS,** **W/O.RAMACHANDRAN, CHAMAKALAYIL, CHUNANGAD, OTTAPALAM TALUK, PALAKKAD DISTRICT.** ## **BY ADV. SRI.RANJIT BABU** ## **RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT:** **---------------------------------------------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.** **2. P.K.PRASANNAKUMARI,, AGED 50 YEARS, W/O.SKATHIDHARAN, "AKSHAYA", THENUR, PALAKKAD TALUK,PIN - 678 616.** **R1 BY PUBLIC PROSECUTOR SRI.LIJU V.STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **CRRP.NO.1717/2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURE:** ## **ANNEX.1: COPY OF THE DEATH CERTIFICATE OF THE PETITIONER'S HUSBAND.** **RESPONDENT'S ANNEXURES: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **K. HARILAL, J.** ## **-------------------** ## **Crl.R.P. No.1717 of 2013 -------------------------------Dated this the 27[th] 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.146 of 2011 on the files of the II Additional Sessions Judge, Palakkad. The above appeal was filed challenging the judgment finding the Revision Petitioner guilty of the said offence, passed in S.T.No.181 of 2009 on the files of the Judicial First Class Magistrate's Court -II, Palakkad. According to the impugned judgment, the Revision Petitioner is sentenced to udergo imprisonment till rising of the court and pay Rs.1,10,000/-(Rupees One Lakh Ten thousand only) as compensation to the complainant/2[nd] respondent under Section 357 (3) of **Crl.R.P. No.1717 of 2013 2** Cr.P.C. and in default of payment of compensation, she shall undergo simple imprisonment for three months. 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 reappreciation 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/2[nd ] 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 2[nd] respondent. So also, it is found **Crl.R.P. No.1717 of 2013 3** that the debt due to the 2[nd] 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 had been arrived. Therefore, I am not inclined to re-appreciate 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 five months. **Crl.R.P. No.1717 of 2013 4** 4. 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. 5. Though notice has been served to the complainant/2[nd] respondent she didn't enter appearance to contest this Revision Petition on merits. Having regard to the nature and gravity of **Crl.R.P. No.1717 of 2013 5** the offence, in the light of the decisions quoted above and submission made at the Bar, expressing willingness to pay the compensation within five months, I am inclined to grant five months time to pay the compensation. 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 a compensation of Rs.1,10,000/- (Rupees One Lakh Ten Thousand only) to the complainant/2[nd] respondent as compensation within a period of five months from today under Section 357 (3) 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 27/01/2014 with sufficient proof to show payment of compensation . **Crl.R.P. No.1717 of 2013 6** 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** MJL