High Court of KeralaSingle Judge2013-12-03Criminal Revision Petition disposed of; the con...

K. P. KOTTAN v. SHANEESH V.S. and STATE

Case / Petition Number:Crl.Rev.Pet.No. 2359 of 2013

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-12-03
Court Decision / Holding: The Criminal Revision Petition is disposed of accordingly. The substantive sentence of one month’s imprisonment is reduced to simple imprisonment for one day till rising of the court, and a compensation of Rs. 30,000 is to be paid within three months. The petitioner shall appear before the Trial Court to suffer the sentence on or before 3 March 2014 with proof of payment. In default, the petitioner shall undergo simple imprisonment for two months. Warrant pending in execution is kept in abeyance till 3 March 2014.
Final Disposition: Criminal Revision Petition disposed of; the conviction stands but the sentence is modified as described above; payment of compensation and timing are specified; default leads to additional imprisonment; warrants are stayed until 3 March 2014.

Parties to the Case

Appellants / Petitioners

K. P. Kottan

Respondents

Shaneesh V.S.
State represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M.B. Prajith

Counsels for Respondents

• Sri. Ajit Thomas (for R1)
• Public Prosecutor SMT. Seena Ramakrishnan (for R2)

Case Synopsis & Summary

This Kerala High Court revision petition, heard by Single Judge Justice K. Harilal on 3 December 2013, challenges the concurrent conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act, 1881, and the related sentence recorded by the III Additional Sessions Judge, Kozhikode, in turn upholding the Judicial First Class Magistrate’s Court II, Perambra, finding the cheque to be issued in discharge of a legally enforceable debt. The petitioner’s counsel argued that revisional jurisdiction does not permit re-appreciation of evidence absent perversity and urged a re-examination of the evidence. He contended that the courts below correctly held the complainant had established execution and issuance of the cheque and that the presumption under Sections 118(a) and 139 NI Act stood in the complainant’s favour. Relying on Supreme Court decisions Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby, the counsel urged that compensation, rather than punitive imprisonment, should meet justice, and sought time to pay the prescribed compensation. The court, while noting no perversity in the evaluation of evidence, adopted a measured approach in light of the cited authorities, reducing the substantive sentence to one day’s imprisonment and directing payment of Rs. 30,000 within three months, with further conditions and an abeyance of warrants until 3 March 2014. The petition is disposed of accordingly.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 357(3) of the Cr.P.C.Section 118(a) of the NI ActSection 139 of the NI Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner urged that revisional jurisdiction does not permit re-appreciation of evidence unless perversity is shown. He argued that the courts below properly found execution and issuance of the cheque and that the debt was legally enforceable; reliance was placed on Sections 118(a) and 139 NI Act. The petitioner sought a practical, restorative remedy consistent with Kaushalya Devi Massand and Vijayan, requesting time to pay the compensation and a reduced sentence to avoid undue hardship to the family.

Contentions of Respondents

The respondents contended that the revision is limited to sentence and does not permit re-appreciation of evidence; the concurrent findings of guilt and the creditor’s proof were correct; the insistence on payment of compensation under Section 357(3) Cr.P.C. was justified, and no perversity was shown in the evidence or its appreciation.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Court relied on the decision to treat compensation, not imprisonment, as central to achieving justice in Section 138 NI Act cases.
Vijayan v. Baby	2011(4) KLT 355	Positive	Court cited the need for practical and realistic restitution by compensation in the wake of cheque dishonour.

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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 3RD DAY OF DECEMBER 2013/12TH AGRAHAYANA, 1935 Crl.Rev.Pet.No. 2359 of 2013 () ------------------------------------------ AGAINST THE JUDGMENT IN CRL.A 457/2009 of IIIRD ADDL. SESSIONS COURT, KOZHIKODE AGAINST THE JUDGMENT IN STC 241/2008 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT - II, PERAMBRA ## REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- K.P.KOTTAN, AGED 46 YEARS, S/O. UNNIYATHAN, SREE VIHAR HOUSE, MANASSERY POST, KAKKAT AMSOM, KARASSERY DESOM, KOZHIKODE DIST. BY ADV. SRI.M.B.PRAJITH ## RESPONDENTS/RESPONDENTS/COMPLAINANT: --------------------------------------------------------------- 1. SHANEESH V.S., AGED 46 YEARS, S/O. SANKARAN, VIKAS PANAYI HOUSE, KOKKALLUR POST, BALUSSERY, KOZHIKODE DIST.PIN-673612. ## 2. STATE RERPESETNED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682031. R1 BY ADV. SRI.AJIT THOMAS R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-12-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/07/12 K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 2359 of 2013 -----------------------------------------------------Dated this the 03[rd] day of December, 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.457 of 2009 on the files of the court of the IIIrd Additional Sessions Judge, Kozhikode Division. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.C.No.241 of 2008 on the files of the Judicial First Class Magistrate's Court-II, Perambra. According to the impugned judgment, the Revision Petitioner was sentenced to undergo simple imprisonment for one month and to pay to the complainant `30,000/- as compensation under Section 357(3) of the Cr.P.C. and in default to undergo simple imprisonment for three months. 2. The learned counsel for the Revision Petitioner Crl.R.P. No. 2359 of 2013 2 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 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 at. Therefore, I am not inclined to reappreciate entire evidence once again and I confirm the Crl.R.P. No. 2359 of 2013 3 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 three 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 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 be put in great hardship. 5. The Supreme Court, in the decision in Kaushalya Devi Massand Vs. 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. 2359 of 2013 4 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. 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, the revision petitioner is given three months' time to pay the compensation. Similarly, the substantive sentence of imprisonment for a period of one month 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. Crl.R.P. No. 2359 of 2013 5 ii. The Revision Petitioner shall pay a compensation of `30,000/- (Rupees Thirty Thousand only) to the 1[st] respondent/complainant, under Section 357(3) of the Cr.P.C., within a period of three months from today. iii. The Revision Petitioner shall appear before the Trial Court to suffer the substantive sentence of simple imprisonment as ordered above on or before March 3[rd] , 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. v. Warrant pending in execution of the sentence imposed on the revision petitioner under the impugned judgment shall be kept in abeyance till 3[rd] March, 2014. The Criminal Revision Petition is disposed of accordingly. ## (K. HARILAL, JUDGE) DSV/04/12 Crl.R.P. No. 2359 of 2013 6