K.K. Sivadas v. Kalpaka Finance and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 24TH DAY OF JULY 2013/2ND SRAVANA, 193** **Crl.Rev.Pet.No. 2990 of 2003 ( )** **--------------------------------** **AGAINST THE JUDGMENT IN CRA 505/2002 of SESSIONS COURT, THRISSUR, DATED 28-08-2003** **AGAINST THE JUDGMENT IN ST 2009/2000 of J.M.F.C.-II, THRISSUR, DATED 22-10-2002** ## **REVISION PETITIONER/APPELLANT/ACCUSED:-** **-------------------------------------** **K.K.SIVADAS, S/O.KUNNATH KOCHUYKUTAN, PANDIKKAVU, VIYYUR, THRISSUR.** **BY ADV. SRI.C.HARIKUMAR** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT& STATE:-** **------------------------------------------** **1. KALPAKA FINANCE, USHA COMPLEX, WEST FORT, TRISSUR, REP: BY POWER OF ATTORNEY ANTONY XAVIER.** **2. STATE OF KERALA, REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** = = = = = = = = = = = = Crl.R.P.No.2990 of 2003. = = = = = = = = = = = = Dated this the 24[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.505/2002 on the files of the Sessions Judge, Thrissur. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in ST.No.2009/2000 on the files of the Judicial First Class Magistrate's Court-II, Thrissur. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one month and to pay Rs.50,000/- as compensation and in default to undergo simple imprisonment for one month. **Crl.RP.No.2990/2003.** 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/first 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 first respondent. So also, it is found that the debt due to the first respondent was a legally enforceable debt and Ext.P5 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.RP.No.2990/2003.** 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 allegation against the accused in the complaint is that the accused had borrowed a sum of Rs.45,000/- from the complainant on 20.1.1999. Subsequently on 16.7.1999 he issued a cheque for Rs.49,390/- towards the principal and interest. When the cheque was presented for collection, the same was dishonoured and returned for want of sufficient funds and thereby he has committed the offence punishable under Section 138 of the NI Act. In evidence, the accused in the statement under Section 313 Cr.PC contended that initially he borrowed a sum of Rs.5,000/- from the complainant. The said amount was repaid. Subsequently another loan of Rs.15,000/- was availed by him and the other amount also was repaid in instalments at the rate of Rs.1200/- per 4 ## **Crl.RP.No.2990/2003.** month. He further deposed that for security to the above transaction he has given four blank signed cheques along with some other documents. According to him, Ext.P5 cheque was one of the cheques issued by him and the same was misutilised for prosecuting him. 4. 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/fine within three months. 5. 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 **Crl.RP.No.2990/2003.** 5 the sentence of imprisonment also. If the revision petitioner is incarcerated for a period as ordered by the courts below, the entire family will put in great hardship. 6. 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. 7. 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 6 ## **Crl.RP.No.2990/2003.** the compensation within three months, I am inclined to grant three months time to pay the compensation. Similarly, the substantive sentence of simple 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. ii. The Revision Petitioner shall pay a compensation of Rs.45,000/- (Rupees forty five thousand only) to the complainant/first respondent within a period of three months from today. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 26.10.2013 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo 7 ## **Crl.RP.No.2990/2003.** simple imprisonment for a period of one month. The Criminal Revision Petition is disposed of accordingly. Sd/- **K. HARILAL,** **(JUDGE)** **Kvs/-** **==> picture [83 x 10] intentionally omitted <==** **----- Start of picture text -----**<br> -// true copy //-<br>**----- End of picture text -----**<br> **==> picture [80 x 10] intentionally omitted <==** **----- Start of picture text -----**<br> PA TO JUDGE.<br>**----- End of picture text -----**<br>