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High Court of KeralaSingle JudgeCriminal Revision Petition disposed of; convict...

GEO MATHEW v. DR. MAHESH and THE STATE OF KERALA

Case / Petition Number:Crl.Rev.Pet.No. 1652 of 2013
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Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Harilal
Judgment Date
2013-09-27
Court Decision / Holding
The Criminal Revision Petition is disposed of accordingly. The conviction remains, but the substantive sentence is reduced: (i) the petitioner shall undergo simple imprisonment for one day until rising of the court; (ii) he shall pay Rs. 2,00,000 to the complainant within six months under Cr.P.C. Section 357(3); (iii) he shall appear before the Trial Court to suffer the substantive sentence as ordered within 27/03/2014, with proof of payment; (iv) in default, he shall undergo two months’ simple imprisonment. This reflects a balanced, restorative approach prioritizing compensation while ensuring accountability.
Final Disposition
Criminal Revision Petition disposed of; conviction sustained with modified sentence and payment terms; time for payment and minimal imprisonment imposed; default consequences provided.

Parties to the Case

Appellants / Petitioners

  • Geo Mathew

Respondents

  • Dr. Mahesh
  • The State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. K. P. Ramachandran
  • • Sri. Shoba Nair
  • • Sri. S. S. Meera

Counsels for Respondents

  • • Sri. B. Pramod
  • • Seena Ramakrishnan

Case Synopsis & Summary

This Kerala High Court criminal revision petition challenges the concurrent conviction under Section 138 of the Negotiable Instruments Act, 1881, and the sentence imposed by the Additional Sessions Judge, Alappuzha, in respect of a cheque issued to discharge a debt. The petitioner Geo Mathew was convicted in C.C. No. 14 of 2011 by the Judicial First Class Magistrate’s Court-II, Alappuzha, and the appeal in Crl.A. No. 414 of 2012 upheld the conviction and imposed three months of simple imprisonment with a direction to pay Rs. 2,00,000 as compensation under Cr.P.C. Section 357(3). The revision petition contends there is no perversity in the appreciation of evidence and that the sentence is disproportionate. It argues the offence under Section 138 NI Act has a quasi-civil character with criminal overtones and that the compensatory remedy should be prioritized; it seeks more time to pay and a lesser sentence. The respondents urge a practical approach, noting the cheque dates from 2010, and request a six-month window for payment while seeking moderation of punishment. The High Court relies on Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby to favor a restorative approach and ultimately reduces the sentence and grants time for payment, disposing of the revision petition accordingly.

Provisions of Law Cited

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

Legal Doctrines & Maxims

  • The offence under Section 138 NI Act is quasi-civil in nature with criminal overtones; punishment by way of compensation can meet ends of justice.
  • Restitution/compensation should be practical and realistic; compensatory remedy takes priority over punitive action.
  • Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC 2566) – authority for quasi-civil character of the offence and compensatory approach.
  • Vijayan v. Baby (2011(4) KLT 355) – restitution/compensation should be practical and realistic.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner argued that there is no perversity in the trial court’s appreciation of evidence and that challenges are limited to sentencing. He asserted that the offence under Section 138 NI Act has quasi-civil character and that the court should emphasize the compensatory remedy over punitive measures. He urged re-appreciation of evidence is not permissible in revisional jurisdiction unless perverse findings are shown, and sought setting aside or substantial reduction of the sentence. He also expressed willingness to pay the compensation but requested a realistic timeframe (six months), contending that immediate payment is financially challenging for his family. The aim was to secure a proportionate sentence aligned with the nature of the offence, and to ensure practical, realizable restitution to the complainant.

Contentions of Respondents

The respondents urged that reasonable time be granted for payment since the cheque relates to a debt from 2010. They emphasized the need for a measured reduction of punishment in light of the offence’s gravity but endorsed a six-month window for payment. They supported the court in taking a restorative approach, with emphasis on payment of compensation and ensuring the petitioner’s appearance in court for effective execution of the sentence, including modification of the actual imprisonment period to a minimal form if warranted.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Kaushalya Devi Massand v. RoopkishoreAIR 2011 SC 2566PositiveCited to support the view that 138 NI Act offences have a quasi-civil character and that compensation can meet ends of justice.
Vijayan v. Baby2011(4) KLT 355PositiveCited to emphasize practical, realistic restitution and prioritization of the compensatory aspect.
Damodar S. Prabhu v. Sayed Babala HILR 2010 (2) KLA, Page 577Mentioned OnlyAnnexed as a reference; not directly used to decide the issues in the revision.

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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** **FRIDAY, THE 27TH DAY OF SEPTEMBER 2013/5TH ASWINA, 1935** ## **Crl.Rev.Pet.No. 1652 of 2013** **--------------------------------------AGAINST THE ORDER/JUDGMENT IN CRA 414/2012 of ADDITIONAL SESSIONS COURT, ALAPPUZHA** **AGAINST THE ORDER/JUDGMENT IN CC 14/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ALAPPUZHA** ## **REVISION PETITIONER/APPELLANT/ ACCUSED:** **GEO MATHEW, AGED 35 YEARS, ANGADIKKAL (NARIKUNNEL HOUSE), THOPRAMKUDY, KATTAPPANA, SOUTH P.O, IDUKKI DISTIRCT.** **BY ADVS.SRI.K.P.RAMACHANDRAN SMT.SHOBA NAIR SMT.S.S.MEERA** ## **RESPONDENTS/RESPONDENT/ COMPLAINTS & STATE:** ## **1. DR.MAHESH,** **S/O RAMAKRISHNA PANICKER, MADHAVA COTTAGE, WARD NO VI, ARYAD PANCHAYATH, PIN:688 501.** ## **2. THE STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R1 BY ADV. SRI.B.PRAMOD R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **AS** ## **Crl.Rev.Pet.No. 1652 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE-1: COPY OF THE JUDGMENT DATED 21/11/2012 IN C.C.NO.14 OF 2011 ON THE FILES OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, ALAPPUZHA.** **ANNEXURE-2: COPY OF THE JUDGMENT DATED 15/7/2013 IN CRL.APPEAL NO.414 OF 2012 ON THE FILE OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE, ALAPPUZHA.** **ANNEXURE-3: COPY DECISION DATED 3/5/2010 IN DAMODAR.S.PRABHU VS.SAYED BABALA.H, REPORTED IN ILR 2010 (2) KLA,PAGE NO.577, BY THE CONSTITUTIONAL BENCH OF THE HONOURABLE SUPREME COURT OF INDIA.** ## **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** **P.A.TO JUDGE** ## **AS** ## **K. HARILAL, J. ------------------Crl.R.P. No. 1652 of 2013** ## **-------------------------------** ## **Dated this the 27[th] day of September, 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.414 of 2012 on the files of the Additional Sessions Judge, Alappuzha. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.14 of 2011 on the files of the Judicial First Class Magistrate's Court -II, Alappuzha. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for a period of three months and pay compensation to the complainant/1[st] respondent to the tune of Rs.2,00,000/- (Rupees Two **Crl.R.P. No. 1652 of 2013 2** Lakhs only) under Section 357 (3) of Cr.P.C. In default of payment, he shall undergo simple imprisonment for a period of one month. 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 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. The courts below had concurrently found that the complainant/1[st] 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 1[st] respondent. So also, it is found that the debt due to the 1[st] respondent was a legally enforceable debt and **Crl.R.P. No. 1652 of 2013 3** Ext.P2 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 six months. 4. Similarly, the substantive sentence imposed on the revision petitioner is too harsh and excessive. The learned counsel for the revision petitioner prayed for **Crl.R.P. No. 1652 of 2013 4** 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. 5. 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. 6. The learned counsel for the respondent submits **Crl.R.P. No. 1652 of 2013 5** that reasonable time alone can be given to the Revision Petitioner as the cheque is of the year 2010. 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 six months, I am inclined to grant six months time to pay the compensation. Similarly, the substantive sentence of simple imprisonment for a period of 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.2,00,000/-(Rupees Two Lakhs only) to the complainant/1[st] respondent within a period of six months from today under Section 357 (3) of Cr.P.C. iii. The Revision Petitioner shall appear before the **6** **Crl.R.P. No. 1652 of 2013** Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 27/03/2014 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of two months. The Criminal Revision Petition is disposed of accordingly. _**-**_ Sd/ **K.HARILAL JUDGE** MJL