Jeemon P. Abraham v. N.A. Issac and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 8TH DAY OF OCTOBER 2013/16TH ASWINA, 1935** **Crl.Rev.Pet.No. 90 of 2011 ( )** **-------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 533/2009 of ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM DATED 18-08-2010** **AGAINST THE JUDGMENT IN CC 848/1998 of ADDL.C.J.M., ERNAKULAM.** **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **JEEMON P ABRAHAM, M.I.P. ELECTRONICS, PALLIMUKKU, KOCHI.** **BY ADVS.SRI.R.T.PRADEEP SRI.P.BIJIMON** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **--------------------------------------------** **1. N.A.ISSAC, ROOM NO.8, KRISHNAPRABHU BUILDING, BASIN ROAD, ERNAKULAM P.O., COCHIN-682 031.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682 031.** **R1 BY ADV. SRI.BIJU ABRAHAM R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 90 of 2011 -----------------------------------------------------Dated this the 8[th] day of October, 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.533/09 on the files of the Additional Sessions Judge (Ad hoc-I), Ernakulam. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.848/98 on the files of the Additional Chief Judicial Magistrate's Court, Ernakulam. According to the impugned judgment, the Revision **Crl.R.P. No. 90 of 2011** -: 2 :- Petitioner is sentenced to undergo simple imprisonment for one year and also to pay a sum of Rs.1,25,000/- by way of compensation under Sec.357(3) of the Code of Criminal Procedure to the complainant/P.W.1. In default, to undergo simple imprisonment for three months more. 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 **Crl.R.P. No. 90 of 2011** -: 3 :- is found that the debt due to the 1[st] 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 reappreciate 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 four months. 4. The learned counsel for the 1[st] respondent/complainant submits that the cheque is of the **Crl.R.P. No. 90 of 2011** -: 4 :- year 1998 and the matter went up to the Supreme Court and thereafter remitted to the trial court for fresh consideration. Therefore, considering the long lapse of time, the 1[st] respondent is entitled to get the enhanced compensation. 5. Per contra, the learned counsel for the revision petitioner submits that, at the first instance, the revision petitioner was acquitted of the offence and thereafter the 1[st] respondent had preferred the appeal and the matter went upto to the Supreme Court. Therefore, the revision petitioner alone is not responsible for causing the delay. However, considering the submission at the Bar, the revision petitioner is given four months time to pay the compensation. 6. 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, **Crl.R.P. No. 90 of 2011** -: 5 :- the entire family will put put in great hardship. 7. 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. 8. 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 four months, I am inclined to grant four months time to pay the compensation. Similarly, **Crl.R.P. No. 90 of 2011** -: 6 :- the substantive sentence of simple imprisonment for one year 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.1,25,000/- (Rupees one lakh and twenty five thousand only) to the complainant/1[st] respondent within a period of four months from today under Sec.357(3) of the Cr.P.C. If he had deposited any amount towards compensation, the same shall be credited to and the balance alone needs to be paid as compensation. The complainant/1[st] respondent is allowed to withdraw such 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 7/2/2014 with sufficient proof to show payment of compensation . **Crl.R.P. No. 90 of 2011** -: 7 :- 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)** ## **Nan/** //true copy// P.S. to Judge