Bhavani v. Abdul Rasheed and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935** ## **Crl.Rev.Pet.No. 2543 of 2006** **---------------------------------------[AGAINST THE JUDGEMENT DATED 27/04/2006 OF THE ADDITIONAL DISTRICTAND SESSIONS JUDGE, FAST TRACK (ADHOC-I), KOZHIKODE MADE IN CRL.A. NO.602 OF 2004 – FILED AGAINST THE JUDGEMENT DATED 04/09/2004 OF THE SPECIAL J.F.C.M- I (MARADU CASES), KOZHIKODE MADE IN C.C. NO.303/2004]** **..................** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **BHAVANI, AGED 50 YEARS, SEETHAMBIKA NIVAS, VENNEER VAYAL, P.O.KARAPARAMBA, KOZHIKODE.** ## **BY ADV. SRI.JACOB ABRAHAM.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **---------------------------------------------------------------------** **1. ABDUL RASHEED, AGED 30 YEARS, S/O.ABDULLAKUTTY, MANANTHARI NILAM HOUSE, P.O.KARUVASSERY, KOZHIKODE-10.** ## **2. STATE OF KERALA,** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.P.V.KUNHIKRISHNAN, R2 BY PUBLIC PROSECUTOR SRI. ROY THOMAS.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **K. HARILAL, J. -------------------Crl.R.P. No.2543 of 2006** ## **-----------------------------Dated this the 8[th] day of January, 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.602 of 2004 on the files of the Additional District and Sessions Court, Fast Track, (Adhoc-I), Kozhikode. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.303 of 2004 on the files of the Special Judicial First Class Magistrate's Court (Marad Cases), Kozhikode. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for three months and directed to pay a compensation of **Crl.R.P. No.2543 of 2006** **2** Rs.60,000/- to the complainant/respondent. 2. The case of the complainant is that on 24/01/2001 the revision petitioner borrowed an amount of Rs.60,000/- from the complainant and agreed to repay the same within one month. In discharge of that liability the revision petitioner had issued a cheque dated 24/01/2001 drawn on Canara Bank, West Hill Branch. When he presented the cheque for collection the cheque was dishonoured for want of sufficient funds in the account of the revision petitioner. Though the respondent had caused to issue the lawyers' notice and the revision petitioner had received the same she failed to pay the cheque amount but sent a reply notice stating false allegations. 3. In defence, the case of the revision petitioner is that during 2000 she had lost a cheque book containing cheque leaf numbers 825641 to 825650. Among those cheque leaves she had signed in two cheque leaves. She had lost some other documents such as birth **Crl.R.P. No.2543 of 2006 3** certificate, document of her property along with the cheque book. On 15/09/2002 she had given Ext.D2 letter to the bank instructing not to encash the cheque. The respondent/complainant might have came into the possession of one of the those signed lost cheques and filed the case to harass the revision petitioner. 4. After analysing the evidence of the respondent/complainant, the court below found that the complainant had successfully discharged the initial burden proving execution and issuance of the cheque and thereby he is entitled to get the benefits of the presumption under Section 118(a) and 139 of the Negotiable Instruments Act. I find no reason to disbelieve the said observation of the courts below. 5. Coming to the rebuttal evidence, DW2, the revision petitioner would depose that she used to take cheque book, title deeds of the property, birth certificate of her child etc. whenever she goes out of the house. On that particular day when she went to meet a doctor, **Crl.R.P. No.2543 of 2006 4** she took all these articles and carried the same throughout her journey. But it is pertinent to note that even after the missing of these valuable documents she has not filed a complaint for the loss of her valuable articles to the police. But she made a request to the bank, not to encash the cheque, after getting lawyer's notice in this case. In the above view of the matter, I am also unable to believe or accept that she used to keep cheque book and valuable documents with her throughout her journeys. So also no special circumstances was brought out in evidence to carry such valuable documents always through out the journey. Needless to say the said contention is highly improbable and unbelievable. 6. However, the evidence of DW1, the Bank Manager, coupled with Exts.P2 to P5 shows that though she had filed a stop memo in the bank, there was no sufficient funds in the bank to honour the cheque and the cheque was returned for want of sufficient funds. **Crl.R.P. No.2543 of 2006 5** On a total appreciation of all the circumstances, it could be seen that the alleged missing of cheque along with some valuable articles is a false story put up without any bonafides. Thus, it is seen that the revision petitioner had miserably failed to rebut the presumption under Section 118(a) and 139 of the N.I.Act which stood in favour of the complainant. There is no illegality or impropriety in the concurrent findings of conviction. I do no find any perversity in the appreciation of evidence. So I confirm the conviction entered by the trial court and confirmed by the appellate court. 7. 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 she is unable to raise the said amount forthwith due to paucity of funds. But she is **Crl.R.P. No.2543 of 2006** **6** ready to pay the compensation within six months. 8. Similarly, the substantive sentence imposed on the revision petitioner is too harsh and excessive. The learned counsel for the revision petitioner prayed for setting aside the sentence of imprisonment also. If the revision petitioner is incarcerated for a period as ordered by the courts below, the entire family will put in great hardship. 9. 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 **Crl.R.P. No.2543 of 2006 7** Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect. 10. 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 6 months, I am inclined to grant time upto 10/06/2014 to pay the compensation. Similarly, the substantive sentence of imprisonment for three months will stand 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 a compensation of Rs.60,000/-(Rupees Sixty Thousand only) to the respondent on or before 10/06/2014. iii. The Revision Petitioner shall appear before the **Crl.R.P. No.2543 of 2006 8** Trial Court to suffer substantive sentence of simple imprisonment for one day as ordered above on or before 10/06/2014 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of one month. The Criminal Revision Petition is disposed of accordingly. _**-**_ Sd/ **K.HARILAL JUDGE** MJL