High Court of KeralaSingle Judge2013-07-09Revision Petition disposed of; conviction uphel...

K. Bhaskaran v. State of Kerala and O.S. Basheer

Case / Petition Number:Crl.R.P.No.1050/2003

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-07-09
Court Decision / Holding: i. The Revision Petitioner shall undergo simple imprisonment for one day till the rising of the court. ii. The Revision Petitioner shall pay a compensation of Rs.40,000 to the complainant within three months from today, crediting any amount deposited earlier (including Rs.3,000 paid as fine). The complainant is entitled to withdraw the deposited amount; only the balance remains payable as compensation. iii. The Revision Petitioner shall appear before the Trial Court to suffer the substantive sentence on or before 9.10.2013 with proof of 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.
Final Disposition: Revision Petition disposed of; conviction upheld but sentence modified to primarily restitution-focused terms: conversion of fine into compensation, three months to pay Rs.40,000, one day imprisonment till rising of the court, with default provisions.

Parties to the Case

Appellants / Petitioners

K. Bhaskaran

Respondents

State of Kerala (represented by Public Prosecutor)
O.S. Basheer

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Sebastian Thomas

Counsels for Respondents

• Public Prosecutor (SMT. Seena Ramakrishnan)
• Sri. John Varghese

Case Synopsis & Summary

This High Court of Kerala, in a criminal revision under the Negotiable Instruments Act, examines the conviction of K. Bhaskaran for an offence under section 138 NI Act. The petitioner challenges the concurrent findings of guilt recorded by the Judicial First Class Magistrate, Changanassery, and confirmed by the Additional Sessions Judge, Kottayam, seeking regression of the sentence and a reassessment of the punishment. The court notes that the complainant successfully established the execution and issue of the cheque and that presumption under sections 118(a) and 139 NI Act in favour of the complainant remained unrebutted. Relying on decisions Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby, the court treats the offence as having civil character with criminal overtones, urging a restitution-focused remedy rather than punitive severity. The court converts the imposed fine into compensation and grants the petitioner three months to pay Rs. 40,000 to the complainant, crediting any prior deposits and Rs. 3,000 paid as fine. The substantive sentence is reduced to one day’s imprisonment till the rising of the court, with a default provision of one month’s imprisonment. The petitioner must appear to suffer the substantive sentence if compensation is not paid within the prescribed period, reflecting a pragmatic restitution-focused approach to Section 138 NI Act prosecutions.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Sections 118(a) and 139 of the Negotiable Instruments Act, 1881

Legal Doctrines & Maxims

Offence under Section 138 NI Act is almost in the nature of a civil wrong with criminal overtones.
Compensation/restoration is preferred; restitution in regard to loss due to dishonour of cheque should be practical and realistic.
Doctrine of presumption under Sections 118(a) and 139 NI Act in favour of the complainant.
The compensatory aspect of remedy should be given precedence over punitive aspects in NI Act prosecutions.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel argued that there should be no re-appreciation of evidence in revisional jurisdiction unless perversity is shown and that the sentence is disproportionate to the offence. He pressed for guided application of Kaushalya Devi Massand and Vijayan v. Baby to emphasize restitution and sought a realistic time frame to pay compensation, expressing willingness to pay within three months and requesting credit for any already-deposited amounts.

Contentions of Respondents

The State and the complainant submitted that the revision court should not re-examine the evidence, and that the concurrent findings of guilt were proper. They highlighted that the cheque was duly executed and issued to discharge a legally enforceable debt, with the presumption under NI Act (sections 118(a) and 139) sustaining the complainant’s case; they urged that the court’s approach must balance restitution with the gravity of the offence.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Cited to justify that Section 138 NI Act offences have civil overtones and that compensation can be substituted for fines; supports the restitution emphasis.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to emphasize practical and realistic restitution and the prioritization of compensation over punitive punishment.

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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** **TUESDAY, THE 9TH DAY OF JULY 2013/18TH ASHADHA, 1935** **Crl.Rev.Pet.No. 1050 of 2003 ( ) --------------------------------** **AGAINST THE JUDGMENT IN CRA 318/2001 of ADDL.DISTRICT COURT, KOTTAYAM, DATED 20.12.2002.** **AGAINST THE JUDGMENT IN CC 1771/1998 of J.M.F.C.-II(MOBILE), KOTTAYAM, DATED 31.6.2001** ## **REVISION PETITIONER/APPELLANT/ACCUSED:-** **-------------------------------------** **K.BHASKARAN, KARTHIKA HOUSE, MOOLEDOM P.O., KOTTAYAM.** **BY ADV. SRI.SEBASTIAN THOMAS** ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:-** **-------------------------------------------** **1. STATE OF KERALA, REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. O.S.BASHEER, AJAYA BHAVAN, PERUNNA P.O., CHANGANACHERRY.** **R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN. R2 BY ADV. SRI.JOHN VARGHESE** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** = = = = = = = = = = = = = Crl.R.P.No.1050 of 2003 = = = = = = = = = = = = = Dated this the 9[th] July, 2013 ## **O R D E R** 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.318/2001 on the files of the Additional Sessions Judge, Kottayam. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.1991/1998 on the files of the Judicial First Class Magistrate's Court, Changanassery. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.3,000/- (Rupees three thousand only) and in default, to undergo simple imprisonment for a period of one month. **Crl.R.P.No.1050/2003.** 2 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/second 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 second respondent. So also, it is found that the debt due to the second 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 **Crl.R.P.No.1050/2003.** 3 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 learned counsel for the Revision Petitioner submits that 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/fine within three 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 **Crl.R.P.No.1050/2003.** 4 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 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. The direction to pay fine will stand converted to compensation and the Revision Petitioner is given three months time to pay compensation to the complainant/second respondent. The substantive sentence of imprisonment will stand reduced and modified to imprisonment for one day till the rising of the court. 6. 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 three months, I am inclined to 5 ## **Crl.R.P.No.1050/2003.** grant three months time to pay the compensation. 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 the rising of the court. ii. The Revision Petitioner shall pay a compensation of Rs.40,000/- (Rupees forty thousand only) to the complainant/second respondent within a period of three months from today. If he had deposited any amount before the trial court pursuant to the direction of this Court, the same shall be given credit and so also Rs.3,000/- (Rupees three thousand only) paid as fine also shall be credited. The complainant/second respondent is allowed to withdraw the said amount and the balance amount alone need be paid as compensation. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 9.10.2013 with sufficient 6 ## **Crl.R.P.No.1050/2003.** 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. **K. HARILAL, (JUDGE)** **Kvs/-** ## **Crl.R.P.No.1050/2003.** 7