High Court of KeralaSingle Judge2013-09-09Criminal Revision Petition disposed of accordin...

Joseph Michel v. Harikumar C.J. and The State of Kerala

Case / Petition Number:Crl.R.P.No.1427/2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-09-09
Court Decision / Holding: The Criminal Revision Petition is disposed of accordingly. The conviction is confirmed. The petitioner shall undergo simple imprisonment for one day till rising of the court. The petitioner shall pay a total compensation of Rs.75,000 to the complainant within four months from today; Rs.50,000 already deposited pursuant to interim orders is to be credited and the complainant is allowed to withdraw it. The petitioner shall appear before the trial court to suffer substantive sentence of one day till rising of the court on or before 08/01/2014, with proof of payment of the balance. If the complainant does not accept the balance, the petitioner may deposit it in court and the complainant may withdraw on proper application. In default, the petitioner shall undergo simple imprisonment for one month. The order is disposed of subject to these terms.
Final Disposition: Criminal Revision Petition disposed of accordingly.

Parties to the Case

Appellants / Petitioners

Joseph Michel

Respondents

Harikumar C.J.
The State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri Jawahar Jose
• Smt. Cissy Jawahar

Counsels for Respondents

• Sri Liju V. Stephen

Case Synopsis & Summary

Joseph Michel challenges the concurrent conviction under Section 138 NI Act and the corresponding sentence recorded by the Sessions Court, Pathanamthitta (Criminal Appeal No.128/2011) and the JFMC-I Pathanamthitta (ST No.1178/2007). The Kerala High Court, in Crl.R.P. No.1427/2013, heard the matter on 9 September 2013. The trial court had found that the cheque was issued in discharge of a legally enforceable debt and that the accused failed to rebut the presumption under Sections 118(a) and 139 NI Act, sustaining a conviction and imposing imprisonment for one day plus a compensation of Rs.1,25,000 under Section 357(3) Cr.P.C., with default imprisonment of one month. The petitioner urged re-appreciation of evidence (which is ordinarily not permissible in revisional jurisdiction absent perversity) and relied on precedents that emphasize compensation as the main remedy in Section 138 matters. The High Court did not find perversity in the lower courts’ appreciation and reaffirmed the conviction, but exercised its discretion to soften the sentence. Relying on Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby, the court held that the compensatory remedy should take priority and granted four months to pay the balance compensation. The order directs a one-day sentence to be served, Rs.75,000 to be paid within four months (with Rs.50,000 already deposited credited to the account and partly withdrawable by the complainant), and provision for default imprisonment. The bench emphasizes a practical, restitution-focused resolution rather than punitive emphasis.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Offence under Section 138 NI Act is almost in the nature of civil wrong with criminal overtone.
Compensatory aspect of remedy should be given much priority over punitive aspect.
Direction to pay compensation by way of restitution should be practical and realistic.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision challenges the conviction and urges that there is no perversity in the order. The counsel submits that the evidence should not be re-appreciated in revisional scrutiny; reliance on Sections 118(a) and 139 NI Act is maintained; the applicant contends the sentence is excessive and that he can pay compensation within four months; citations to Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby are used to argue a restitution-based remedy.

Contentions of Respondents

The respondents argue that the revision is primarily about sentence, not guilt, and that the concurrent findings should stand; no perversity is shown in the evidence; the statutory presumption in favor of the complainant under NI Act remains intact; the debt is enforceable; the conviction should be upheld and the sentence maintained or appropriately modified only within the scope of law.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Cited to support that the offence under Sec. 138 NI Act has civil-like features and that compensation can meet ends of justice.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to emphasize that compensation/restitution should be practical and realistic.

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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** **MONDAY, THE 9TH DAY OF SEPTEMBER 2013/18TH BHADRA, 1935** ## **Crl.Rev.Pet.No. 1427 of 2013** **--------------------------------** **AGAINST THE ORDER/JUDGMENT IN CRL.APPEAL NO.128/2011 OF SESSIONS COURT,PATHANAMTHITTA DATED 30/06/2012** **......** **AGAINST THE ORDER/JUDGMENT IN ST NO.1178/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I,PATHANAMTHITTA DATED 20/06/2011** **......** ## **PETITIONER(S)/APPELLANT/ACCUSED:** **-----------------------------------------------------------** **JOSEPH MICHEL, AGED 36 YEARS, S/O.MICHEL JOSEPH, RESIDING AT ELSY NIVAS, THONNAKKADU P.O., THONNAKKADU MURI, CHERIYANADU VILLAGE, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.JAWAHAR JOSE SMT.CISSY JAWAHAR** ## **RESPONDENTS/RESPONDENTSCOMPLAINANT AND STATE:** **------------------------------------------------------------------------------------------** **1. HARIKUMAR C.J., RESIDING AT CHITTAYIL HOUSE, CHERUKOLPUZHA P.O., KOZHENCHERY, PATHANAMTHITTA DISTRICT.** **2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI.LIJU V.STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.R.P.No.1427/2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURE:** **ANNEX.1: COPY OF THE RECEIPT ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT I, PATHANAMTHITTA DATED 28/05/2013.** ## **RESPONDENT'S ANNEXURES: N I L** **/TRUE COPY/** **P.A.TO JUDGE** ## **Kss** ## **K. HARILAL, J.** ## **---------------------Crl.R.P. No. 1427 of 2013** **------------------------------Dated this the 9[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.128 of 2011 on the files of the Sessions Judge, Pathanamthitta. The above appeal was filed challenging the judgment finding the Revision Petitioner guilty of the said offence, passed in S.T.No.1178 of 2007 on the files of the Judicial First Class Magistrate's Court-I, Pathanamthitta. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one day till rising of the court and directed to pay Rs.1,25,000/(Rupees One Lakh Twenty Five Thousand only) as compensation under Section 357 (3) Cr.P.C, to the complainant and in default to undergo simple **Crl.R.P. No. 1427 of 2013** **2** imprisonment for 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 1st respondent. So also, it is found that the debt due to the 1st respondent was a legally enforceable debt and 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 **Crl.R.P. No. 1427 of 2013** **3** 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 four months. 4. 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 **Crl.R.P. No. 1427 of 2013 4** 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. 5. 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. Though notice has been served on the complainant/1[st] respondent, he has not chosen to enter appearance and contest the Revision Petition on merits. Out of the amount directed to be paid as compensation pursuant to the interim order of this Court dated 23/05/2013 the Revision Petitioner had deposited Rs.50,000/- before **Crl.R.P. No. 1427 of 2013 5** the trial court on 28/05/2013 and the receipt there of is produced in this Revision Petition along with Crl.M.A.No.4222/2013. So the said amount shall be credited and balance amount of Rs.75,000/- (Rupees Seventy Five Thousand only) alone needs to be paid directly as compensation and the complainant is allowed to withdraw Rs.50,000/-(Rupees Fifty Thousand only) which had been deposited pursuant to the order dated 23/05/2013. 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.75,000/- to the complainant / 1[st] respondent within a period of four months from today and the complainant is allowed to withdraw Rs.50,000/which had been deposited on 28/05/2013 pursuant to the interim order of this Court dated 23/05/2013. iii. The Revision Petitioner shall appear before the **Crl.R.P. No. 1427 of 2013** **6** trial court to suffer substantive sentence of simple imprisonment for one day till rising of the court as ordered above on or before 08/01/2014 with sufficient proof to show payment of balance compensation. If the complainant is not willing to receive the balance compensation, the Revision Petitioner is allowed to deposit the said amount in the trial court and the complainant is allowed to withdraw the said amount on proper application. 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