High Court of KeralaSingle Judge2013-07-18Revision petition partly allowed; conviction up...

Dr. Kurian J. v. M.J. John and State of Kerala

Case / Petition Number:Crl.R.P.No.3242/2005

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-07-18
Court Decision / Holding: The High Court, while confirming the conviction, re-sentences the accused as follows: (i) simple imprisonment for one day till rising of the court; (ii) pay a fine of Rs.2,50,000, to be treated as compensation payable to the complainant under Cr.P.C. 357(1)(b); (iii) in default, undergo simple imprisonment for two months; (iv) any deposited amount toward the fine shall be credited; the complainant may realize the balance if any. The conviction is not set aside; the sentence is modified in light of compensatory principles.
Final Disposition: Revision petition partly allowed; conviction upheld; sentence modified as specified.

Parties to the Case

Appellants / Petitioners

Dr. Kurian J., Mannooparammbil Veedu, Parippu P.O., Kottayam District

Respondents

M.J. John, Mecheril Veedu, Valavoor P.O., Pala, Kottayam District
State of Kerala, represented by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Mathew John (K)
• Sri. Sujesh Menon V.B.

Counsels for Respondents

• Sri. Joseph Sebastian Purayidam
• Public Prosecutor Smt. Seena Ramakrishnan

Case Synopsis & Summary

This is a Kerala High Court criminal revision petition (Crl.R.P.No.3242 of 2005) arising from a conviction under Section 138 of the Negotiable Instruments Act (NI Act) by a Subordinate Court and confirmed on appeal. The respondent complainant claimed that the accused borrowed Rs.2,00,000 on 2-1-2002 and issued Ext.P1, a cheque for Rs.2,50,000, in discharge of the debt. The cheque bounced for want of funds; a legal notice was issued; the accused did not pay, leading to the NI Act prosecution. The defence contends Ext.P1 was not the debtor’s cheque for the complainant’s loan but a security for a separate loan to a third party (John Syriac); Pw1 supported the complainant’s case, while Dw1 Syriac, though hostile, denied any linked transaction. The accused also challenged territorial jurisdiction, relying on Thressiamma v. State of Kerala and Purushothaman v. State of Kerala, but the court held such objections must be raised early and not after conviction. The High Court, while upholding the conviction, invoked decisions Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby to reduce the sentence, emphasizing the civil/compensatory nature of Section 138 NI Act and the practicality of restitution. The result is a one-day imprisonment, Rs.2,50,000 fine to be paid as compensation, with further default imprisonment, and credit for any deposited amount.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 118(a) of the NI ActSection 139 of the NI ActCr.P.C. 357(1)(b)

Legal Doctrines & Maxims

Presumption under Sections 118(a) and 139 NI Act (debt and issuance of cheque)
Offence under Section 138 NI Act is quasi-criminal with civil overtone; compensation suffices (Kaushalya Devi Massand v. Roopkishore)
Restitution/compensation priority over punitive measures (Vijayan v. Baby)
Territorial jurisdiction objections must be raised at the earliest stage and before trial (Thressiamma v. State of Kerala; Purushothaman v. State of Kerala)

Submissions & Arguments

Contentions of Appellants / Petitioners

The accused contends Ext.P1 was not issued to discharge the complainant’s debt but as security for a loan from John Syriac; he asserts the existence of a separate loan transaction and that the cheque represents security for that loan, not repayment of the complainant’s loan. Pw1’s testimony supports Ext.P1 as the debt instrument; Dw1 Syriac denied the linked transaction and was declared hostile. The defence relies on 313 statements repeating the security loan theory. The territorial jurisdiction objection was raised, citing Thressiamma and Purushothaman; however, the court held such objections must be raised earlier and declined to consider the point at this stage. The accused argues failure to prove that Ext.P1 relates to the complainant’s loan and suggests a misapplication of the cheque by the complainant. The core challenge is whether Ext.P1 represents the debt to the complainant; accordingly, the conviction should be reconsidered.” ,

Contentions of Respondents

The complainant proved execution and issuance of Ext.P1; after dishonour, the legal notice was served; the accused did not rebut the presumptions under Sections 118(a) and 139 NI Act; Ext.P1’s link to the complainant’s debt was established; the defence’s claim of a different loan is not credibly supported, and the hostile evidence from Syriac does not negate the prosecution case. Jurisdiction objections were considered but not tenable at this stage. The trial and appellate courts’ conclusions were sound. The court’s reliance on Kaushalya Devi Massand and Vijayan v. Baby supports prioritizing restitution and compensation over punitive aspects, which justifies reducing the sentence while maintaining conviction.”},

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Court treats this decision as establishing that Section 138 NI Act offences are quasi-criminal with civil overtones and that compensation can meet ends of justice, guiding sentence reduction.
Vijayan v. Baby	2011(4) KLT 355	Positive	Court uses the restitution/restoration principle to emphasize practical compensation rather than punitive measures.
Thressiamma v. State of Kerala	2010(4) KLT 598	Positive	Territorial jurisdiction objections must be raised early; followed to reject late-stage challenge.
Purushothaman v. State of Kerala	2009(2) KLT 540	Positive	Affirms the early-stage objection principle on territorial jurisdiction.

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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** **THURSDAY, THE 18TH DAY OF JULY 2013/27TH ASHADHA, 1935 Crl.Rev.Pet.No. 3242 of 2005 ( ) --------------------------------** **AGAINST THE JUDGMENT IN CRA 173/2005 of SPL. COURT (NDPS ACT CASES), THODUPUZHA, DATED 00-00-0000** **AGAINST THE JUDGMENT IN ST 99/2004 of J.M.F.C.-II, THODUPUZHA, DATED 08-06-2005** **REVISION PETITIONER/APPELLANT/ACCUSED:-------------------------------------** **DR. KURIAN J., MANNOOPARAMBIL VEEDU, PARIPPU P.O., KOTTAYAM DISTRICT.** **BY ADVS.SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B.** **RESPONDENTS/RESPONDENTS/COMPLAINANT & NOT PARTY:-----------------------------------------------** **1. M.J. JOHN, MECHERIL VEEDU, VALAVOOR P.O., PALA, KOTTAYAM DISTRICT.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA ERNAKULAM.** **R1 BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** = = = = = = = = = = = = Crl.R.P.No.3242 of 2005. = = = = = = = = = = = = Dated this the 18[th] July, 2013 ## **O R D E R** This Revision Petitioner is the accused in ST.No.99/2004 on the files of the Chief Judicial Magistrate Court, Muttom, Thodupuzha. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act') on a complaint filed by the first respondent. After trial, the learned Magistrate found the Revision Petitioner guilty of the offence punishable under Section 138 of the NI Act and convicted thereunder. He was sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.2,50,000/- (Rupees two lakhs fifty thousand only) and in default to undergo simple imprisonment for one month. If the fine amount is realised, the same shall be given to the complainant as compensation. Aggrieved by the conviction 2 ## **Crl.R.P.No.3242/2005.** and sentence, though he had preferred Criminal Appeal No.173/2005, the appellate court also confirmed the conviction and sentence as such without any interference. This Revision Petition is filed against the conviction and sentence imposed on the Revision Petitioner. 2. The complainant's case is that the accused borrowed a sum of Rs.2,00,000/- from the complainant on 2.1.2002 promising to repay the same within two years with interest at the rate of 12% per annum. Thus, the accused owed Rs.2,50,564/- to the complainant. In discharge of that debt the accused issued a cheque for a sum of Rs.2,50,000/-. When the complainant had presented the cheque for collection the same was dishonoured for want of sufficient funds. The complainant caused to issue a lawyer notice and the accused accepted the same, but he had neither responded to the notice nor did he pay off the cheque amount as demanded by the notice. Thus, the accused has committed the offence punishable under 3 ## **Crl.R.P.No.3242/2005.** Section 138 of the NI Act. 3. To prove the execution and issuance of the cheque, the complainant was examined as Pw1 and Exts.P1 to P8 were marked. In defence, while cross examining Pw1, the accused made a suggestion that he had borrowed a sum of Rs.2,00,000/- from another person by name one John Syriac for interest and the accused had issued three cheques as security for the said amount to him. The complainant had obtained and misused one of the cheques and filed the present complaint. In 313 statement he reiterated the said contention that Ext.P1 cheque was one issued as a security to the said John Syriac when he borrowed Rs.2,00,000/- from him. 4. To prove the defence contention the said John Syriac was examined as Dw1. But he denied the allegation of the accused. He had been declared hostile. He is none other than the business partner of the accused. According to him, there is no such transaction between them in 4 ## **Crl.R.P.No.3242/2005.** connection with Ext.P1. Thus, the defence set up by the accused collapsed at its entirety. In the trial side though the accused raised a contention challenging the territorial jurisdiction of the court, the same also does not deserves to be considered in view of the decisions laid down in **Thressiamma v. State of Kerala** (2010(4) KLT 598) and **Purushothaman v. State of Kerala** (2009(2) KLT 540). The preposition laid down in those decisions is that objection to territorial jurisdiction has to be raised at the earliest point of time and not after the conviction is entered. It is also laid down that the objection to territorial jurisdiction must be raised before the commencement of trial. Therefore, that question need not be considered at this stage. 5. After considering both oral and documentary evidence, the trial court found that the complainant successfully discharged initial burden of proving execution and issuance of Ext.P1 cheque, whereas the accused **Crl.R.P.No.3242/2005.** 5 miserably failed to rebut the presumption under Section 118(a) and 139 of the NI Act. I do not find, any illegality or impropriety in any of the findings or any perversity in the appreciation of evidence from which those findings have been arrived at. In the result, I concur with the findings of the court below and confirm the conviction entered. Coming to the sentence, I find that the sentence imposed on the Revision Petitioner is excessive and disproportionate with the nature and gravity of the offence. 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 v. 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 6 ## **Crl.R.P.No.3242/2005.** 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. 7. In view of the above decisions I am inclined to reduce and modify the sentence imposed on the Revision Petitioner. In supersession of the sentence imposed on the Revision Petitioner by the trial court and confirmed by the appellate court, the Revision Petitioner is 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 fine of Rs.2,50,000/- (Rupees two lakhs fifty thousand only) and the same shall be given to the complainant/first respondent under Section 357(1)(b) of the Cr.PC. iii. In default, the Revision Petitioner shall undergo simple imprisonment for a period of two months. 7 ## **Crl.R.P.No.3242/2005.** iv. If any amount had been deposited towards fine amount, the same shall be given credit and the balance alone need be paid as fine and the complainant/first respondent is permitted to realise such deposit, if any. Sd/- **K. HARILAL,** **(JUDGE)** **Kvs/-** **// true copy //** **PA TO JUDGE.**