Balachandran v. State of Kerala and T.R. Narayan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 29TH DAY OF AUGUST 2013/7TH BHADRA, 1935** **Crl.Rev.Pet.No. 149 of 2004 (C) --------------------------------** **Crl.A 140/1996 of ADDL.DISTRICT AND SESSIONS COURT (ADHOC), PATHANAMTHITTA DATED 11-07-2003** **ST 993/1994 of JUDICIAL FIRST CLASS MAGISTRATE-II, PATHANAMTHITTA DATED 30-11-1996** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **------------------------------------------** **BALACHANDRAN, S/O. NARAYANAN, REMALAYAM, KUMARANPEROOR, THEKKEKKARA MURI VADASSERIKKARA VILLAGE** **BY ADV. SRI.V.PHILIP MATHEWS** **COMPLAINANT(S)/RESPONDENTS & STATE:** **------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **2. T.R.NARAYAN, THANDALIL HOUSE, VALANCHUZHI MURI, PATHANAMTHITTA VILLAGE.** **R1 BY PUBLIC PROSECUTOR SRI.LIJU.V.STEPHEN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **stu** ## **K.HARILAL, J.** = = = = = = = = = = = **Crl.R.P.No.149 of 2004** = = = = = = = = = = = = = = = Dated this the 29[th] day of August, 2013 ## **O R D E R** The Revision petitioner is the accused in S.T.No.993/1994 on the files of the Judicial First Class Magistrate's Court-II, Pathanamthitta as well as appellant in Crl.A.No.140/1996 on the files of the Additional District and Sessions Court (Adhoc), Pathanamthitta. He was prosecuted for the offence punishable under Sec.138 of the Negotiable Instruments Act (for short 'N.I.Act') on a complaint filed by the 2[nd] respondent herein. After trial, the learned Magistrate found the revision petitioner guilty of the said offence and convicted thereunder. He was sentenced to undergo simple imprisonment for six months. Though aggrieved by the conviction and sentence, the revision petitioner had preferred the above Criminal Appeal, the appellate court also confirmed the verdict of guilty and conviction but modified the sentence. The Crl.R.P.No.149 of 2004 2 substantive sentence of imprisonment was reduced and modified to simple imprisonment for one month and to pay compensation of 3 lakhs to the complainant/2₹ nd respondent as compensation and in default to undergo simple imprisonment for three months. This revision petition is filed challenging the concurrent findings of conviction and modified sentence. 2. The case of the complainant is that the revision petitioner had borrowed an amount of 2,50,000/- from the₹ 2[nd] respondent/complainant and in discharge of that debt, issued a cheque for 2,50,000/- dated 25/03/1993 in favour₹ of the complainant. On presentation, the said cheque was dishonoured for want of sufficient funds. Though the complainant caused to issue lawyer's notice to the revision petitioner, the revision petitioner did not pay the cheque amount. Thus, the revision petitioner has committed the offence punishable under Sec.138 of the N.I.Act. 3. In defence, the revision petitioner contended that Crl.R.P.No.149 of 2004 3 the revision petitioner and the 2[nd] respondent were partners of a firm and the revision petitioner had left signed cheques in the firm and the complainant had snatched off one such cheque and had filled up the same into Ext.P1. In the reply to questions under 313, the revision petitioner had taken very same stand. 4. To prove the execution and issuance of the cheque, the 2[nd] respondent had examined PWs.1 to 3 and produced and marked Exts.P1 to P9. PW2 is the complainant himself. PW1 is the Manager and PW3 is the independent witness examined on the side of the complainant. 5. To rebut the presumption under Sec.118(a) and 139 of the N.I.Act, one witness was examined as DW1 and Exts.D1 to D4 were marked. DW1 was examined to prove that the signature which Ext.P1 cheque bears is not as that of the admitted signature of the Revision Petitioner. But, DW1 had categorically admitted that the signature seen in Exts.P1 and D1 are one and the same and while the cheque Crl.R.P.No.149 of 2004 **==> picture [7 x 9] intentionally omitted <==** was dishonoured, the signature in Exts.P1 and D1 were compared. Ext.D1 is the admitted specimen signature kept in the bank. The specific contention raised in defence is that Ext.P1 cheque was snatched away and thereafter manipulated by putting revision petitioner's signature. But absolutely, no evidence had been adduced so as to prove the alleged snatching away of the cheque from the revision petitioner. 6. After analyzing the evidence, the court below concurrently found that the 2[nd] respondent had successfully discharged initial burden of proving execution and issuance of cheque in discharge of a legally enforceable debt; whereas the revision petitioner failed to rebut the presumption under Sec.118(a) and 139 of the N.I.Act, which stood in favour of the 2[nd] respondent. There is no illegality or impropriety in the said findings and I do not find any kind of perversity in the appreciation of evidence from which those findings have been arrived at. In the absence of any Crl.R.P.No.149 of 2004 5 kind of illegality, impropriety or perversity, this Court is not inclined to re-appreciate the entire evidence afresh under revisional jurisdiction. 7. The learned counsel for the revision petitioner submits that the sentence imposed on the revision petitioner is too harsh, excessive and disproportionate with the nature and gravity of the offence. The counsel further prayed for modifying the sentence and also prayed for time to pay the compensation. 8. 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 Crl.R.P.No.149 of 2004 6 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. 9. In view of the above decisions, I am of the opinion that the sentence imposed on the revision petitioner is excessive, harsh and disproportionate with the nature and gravity of the offence as rightly contended by the learned counsel for the revision petitioner. Consequently, in supersession of the sentence imposed by the trial court and modified by the appellate court, the revision petitioner will stand sentenced as follows: 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.3 lakhs to the 2[nd] respondent/complainant within a period of two months from today. If any amount had been deposited before the trial court towards compensation, the same shall be given credit to and the balance alone need be Crl.R.P.No.149 of 2004 7 paid as compensation and the 2[nd] respondent/complainant will be allowed to withdraw the said deposit, if any. iii. The revision petitioner shall appear before the trial court to suffer substantive sentence of simple imprisonment as ordered above on or before 1[st] November, 2013 with sufficient proof to show payment of compensation. iv. In default, the revision petitioner shall undergo simple imprisonment for three months. This revision petition is disposed of accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge.