Kannath Sreenivasan v. K. Raveendran and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 22ND DAY OF JULY 2013/31ST ASHADHA, 1935 Crl.Rev.Pet.No. 2345 of 2003 (D) --------------------------------** **AGAINST THE JUDGMENT IN CRA 218/2002 of D.C.& SESSIONS COURT, MANJERI, DATED 21-07-2003.** **AGAINST THE JUDGMENT IN CC 508/1999 of J.M.F.C., TIRUR, DATED 31-07-2002.** **REVISION PETITIONER/APPELLANT/ACCUSED:-** **-------------------------------------** **KANNATH SREENIVASAN, S/O.LATE PADMANABHAN, PRINCIPAL, KUTTIPPURAM TECHNICAL INSTITUTE, P.O. KUTTIPPURAM.** **BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:-** **-------------------------------------------** **1. K.RAVEENDRAN, S/O.VELAYUDHAN, KODAKKALA HOUSE, B.P. ANGADI, TIRUR, TIRUR POLICE STATION LIMITS. 2. STATE OF KERALA, REP: BY THE PUBLIC PROSECUTOR, HIGH COIURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI.LIJU V.STEPHEN. R1 BY ADV. SRI.K.P.MUJEEB** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** = = = = = = = = = = = = = Crl.R.P.No.2345 of 2003. = = = = = = = = = = = = = Dated this the 22[nd] July, 2013. **O R D E R** The Revision petitioner is the accused in C.C.No.508 of 1999 on the files of the Judicial First Class Magistrate's Court, Tirur. He was prosecuted for the offence punishable under Sec.138 of the Negotiable Instruments Act (for short 'the N.I.Act') on a complaint filed by the 1[st] respondent/complainant. After trial, the learned Magistrate found the Revision petitioner guilty of the offence punishable under Sec.138 of the N.I.Act and convicted thereunder. He was sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs.60,000/- to the complainant/1[st] respondent and in default, to undergo simple imprisonment for three months. Though he had preferred Crl.A.No.218 of 2002 before the Sessions Court, Manjeri, the appellate court also confirmed **Crl.R.P.No.2345/2003.** 2 the conviction and sentence and dismissed the appeal. This revision petition is filed challenging concurrent findings of conviction and sentence imposed on the revision petitioner on various grounds. 2. It is the case of the complainant that the accused/Revision petitioner had borrowed Rs.60,000/- from the complainant and in discharge of that debt, he had issued cheque dated 21/06/1999 for an amount of Rs.60,000/- in favour of the complainant. When the cheque was presented for encashment, the same was dishonoured and returned for want of sufficient funds. Though the complainant had caused to issue a lawyer's notice demanding the cheque amount, the accused had not paid the cheque amount but sent a reply denying the liability. Hence the accused is alleged to have committed the offence punishable under Sec.138 of the N.I.Act. 3. The main contention raised in the revision petition is that the appellate court had dismissed the case without affording an opportunity of being heard and the failure of **Crl.R.P.No.2345/2003.** 3 the counsel for the appellant to appear at the time when the appeal was taken up for hearing was only due to mistake committed in the office of the Sessions Court in recording 'A' diary. Secondly, the complainant has not succeeded in providing the guilt of the accused beyond reasonable doubt. The courts below ought to have found that the probabilities of the case is against conclusion arrived at the court below. 4. Per contra, the learned counsel for the 1[st] respondent advanced arguments to justify the impugned judgments under challenge. The learned counsel further contended that the complainant had successfully discharged initial burden of proving execution and issuance of the cheque; whereas the accused/Revision petitioner miserably failed to rebut the presumption. The courts below concurrently appreciated the evidence in its correct perspective and there is no ground in this revision petition warranting interference under revisional jurisdiction. 5. To prove the execution and issuance of the cheque, the complainant was examined as PW1 and Exts.P1 **Crl.R.P.No.2345/2003.** 4 to P5 were marked. In defence, the accused contended that he had no transaction with the complainant and he had borrowed Rs.50,000/- from Alungal Bharathan on 12/12/1996. For that, Bharathan obtained signed blank cheques from the accused and his wife. Though the accused returned Rs.55,000/- to Bharathan, on a dispute of interest, he refused to return those signed blank cheques and thereafter caused to present the same in the bank, got returned and misused for prosecuting him. 6. To prove the defence contention, the accused examined himself as DW1 and Exts.D1 to D3 were marked. Ext.D1 is the certified copy of the deposition in the civil suit filed by the complainant on the basis of the very same cheques and Exts.D2 and D3 are the photocopies of receipt and agreement respectively. Exts.D1 and D2 were the documents produced in O.S.No.211/1999. No attempt was made by the Revision Petitioner to prove the due execution of the original of Exts.D1 and D2. Hence, the trial court correctly found that no reliance can be placed on the said 5 ## **Crl.R.P.No.2345/2003.** documents. 7. Exts.D1 and D2 were not proved in the civil suit also. Therefore, nothing wrong in the finding that Exts.D1 and D2 are not reliable in the instant case to prove the defence contentions. As regards Ext.D1 is concerned, the findings arrived at in the civil suit has no relevancy at all in deciding the issue involved in a prosecution under Section 138 of the NI Act as the standard of proof and matters required to be proved in civil suit and criminal prosecution under Section 138 of the NI Act are entirely different. 8. After appreciating the entire evidence, the court below found that the complainant had successfully discharged the initial burden of proving execution and issuance of the cheque. Whereas the accused miserably failed to rebut the presumption which stood in favour of the complainant under Section 118(a) and 139 of the NI Act. There is no illegality or impropriety in the said findings. I do not find any kind of perversity in the appreciation of evidence from which those findings have been arrived. The **Crl.R.P.No.2345/2003.** 6 contention that no opportunity had been given to argue the case in appeal is seen unfounded, whenn going through the appellate court judgment. In the appellate court judgment it is specifically stated that the appellant was absent when the case was taken up for hearing. There is no illegality or impropriety in disposing a revision or appeal on merits in the absence of the counsel in the light of the decision in **Bani Singh and others v. State of U.P.** (AIR 1996 SC 2439). 9. Going by the impugned judgment, I am of the opinion that the appellate court had well considered all the points raised in appeal and answered accordingly. Therefore, I am not inclined to accept the argument that the Revision Petitioner was not given an opportunity to argue his case before the court and thereby caused prejudice to him. Consequently, the conviction is confirmed. 10. The next question is, whether the sentence imposed on the Revision Petitioner is just and proper? Going by the sentence, I am of the opinion that the sentence **Crl.R.P.No.2345/2003.** 7 imposed on the Revision Petitioner is excessive, harsh and disproportionate with the nature and gravity of the offence punishable under Section 138 of the NI Act. 11. 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 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. 12. In view of the above decisions, I am inclined to modify the sentence imposed on the Revision Petitioner. In modification of the sentence imposed by the trial court and **Crl.R.P.No.2345/2003.** 8 confirmed by the appellate court, the Revision Petitioner is sentenced as follows: (i) The Revision Petitioner shall undergo simple imprisonment for one day till rising of the court. (ii) The Revision Petitioner shall pay a fine of Rs.60,000/- (Rupees sixty thousand only) and the same shall be given to the complainant/first respondent as compensation. (iii) In default, the Revision Petitioner shall undergo simple imprisonment for three months. This revision petition is allowed in part. Sd/- **K. HARILAL,** **(Judge)** ## **Kvs/-** **-// true copy //-** **PA TO JUDGE.**