High Court of KeralaSingle Judge2014-09-24Criminal Revision Petition disposed of; convict...

K.P. Satheeshkumar v. K.P. Rajappan and State of Kerala

Case / Petition Number:Crl.R.P.No.1655 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2014-09-24
Court Decision / Holding: The Criminal Revision Petition is disposed of; conviction stands, but the sentence is modified: one day of simple imprisonment till rising of the court, and payment of Rs.60,000 as compensation to the complainant within five months from today. If the compensation is not paid within five months, the petitioner shall undergo three months’ simple imprisonment. Warrant pending, if any, is kept in abeyance till 23 February 2015. The petitioner must appear before the Trial Court on or before 23 February 2015 with proof of payment.
Final Disposition: Criminal Revision Petition disposed of; conviction upheld in substance; sentence modified to one day imprisonment and Rs.60,000 compensation to be paid within five months; default leads to three months imprisonment; abeyance of warrants till 23 February 2015.

Parties to the Case

Appellants / Petitioners

K.P.SATHEESHKUMAR S/O PAPPAN

Respondents

K.P.RAJAPPAN
STATE OF KERALA

Legal Representation & Advocates

Counsels for Petitioners

• SRI.PREMCHAND R.NAIR

Counsels for Respondents

• PUBLIC PROSECUTOR SMT.BINDU GOPINATH

Case Synopsis & Summary

The Kerala High Court exercises its revisional jurisdiction in a criminal matter arising from an offence under Section 138 of the Negotiable Instruments Act, 1881. The Revision Petitioner, K.P. Satheeshkumar, challenges the concurrent conviction and sentence recorded by the Judicial First Class Magistrate, Kanjirappally, and affirmed by the Additional Sessions Judge, Kottayam, in Criminal Appeal No. 62/2013. The complainant alleged that Satheeshkumar borrowed Rs. 60,000 and issued a cheque (Ext. P1) dated 1-3-2009 to discharge the debt, drawn on a bank account. While the accused admitted the cheque’s signature and its origin from his account, his case was that the instrument was given to a friend as security for a bike purchase, not for the debt to the complainant. The trial court held that the complainant proved the execution and issue of the cheque and that Sections 118(a) and 139 NI Act created a presumption in the complainant’s favour, which the defence failed to rebut. The revision court rejected a re‑appreciation of evidence, noting no perversity in the lower courts’ findings. Relying on Supreme Court precedents, the court emphasizes a practical, restitutive approach to Section 138 offences, granting five months to pay Rs.60,000 and a one-day imprisonment with conditional suspension of longer sentence, failing which three months’ imprisonment would follow.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Offence under Section 138 NI Act is almost in the nature of a civil wrong with criminal overtone.
Compensatory aspect of remedy should be given priority over punitive aspect in Section 138 NI Act prosecutions.
Burden of proof rests on the accused to rebut presumptions; standard is not merely a preponderance but the proof must counter the presumption under Sec.118(a) and Sec.139 NI Act.
Presumptions under Sec. 118(a) and 139 NI Act operate in favor of the complainant.

Submissions & Arguments

Contentions of Appellants / Petitioners

The counsel for the Revision Petitioner urged for a re-appreciation of evidence, arguing that the impugned findings suffer from perversity and that the trial court’s conclusions regarding the debt, the issuance of Ext. P1, and the lack of rebuttal evidence require reconsideration in revision. It was contended that the evidence does not conclusively establish that Ext. P1 was drawn in discharge of the complainant’s debt and that the applicant’s defence should be re-evaluated.

Contentions of Respondents

The respondents contended that the complainant successfully proved the execution and issue of Ext. P1, and that the presumptions under Sections 118(a) and 139 NI Act operated in the complainant’s favor. The debt was legally enforceable and the instrument was issued to extinguish it; no perversity in the lower courts’ appreciation was shown. The Revisional Court was urged to decline re‑appreciation and to sustain the concurrent judgments.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Cited to support treating Section 138 NI Act offences as largely civil remedial in nature and to justify focusing on restitution (compensation) over punitive measures.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to emphasize practical and realistic restitution in regard to losses caused by dishonour of cheques.

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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** **WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2014/2ND ASWINA, 1936** **Crl.Rev.Pet.No. 1655 of 2014 ()** **--------------------------------** **AGAINST THE JUDGMENT IN ST 253/2011 of JUDICIAL FIRST CLASS MAGISTRATE-III, KANJIRAPPALLY DATED 18-02-2013** **AGAINST THE JUDGMENT IN Crl.A 62/2013 of ADDL.SESSIONS COURT-IV, KOTTAYAM DATED 22-07-2014** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **------------------------------------------** **K.P.SATHEESHKUMAR S/O.PAPPAN, KALLUTHOTTIYIL HOUSE 36[th] MILE, PERVANTHANAM P.O, IDUKKI DISTRICT.** **BY ADVS.SRI.PREMCHAND R.NAIR** **RESPONDENT(S)/COMPLAINANT & STATE:** **------------------------------------** ## **1. K.P.RAJAPPAN** **S/O.PAPPAN, KARIPLACKAL HOUSE, MUNDAKAYAM P.O.** ## **2. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM** **R2 BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **stu** ## **K.HARILAL, J.** = = = = = = = = = = = **Crl.R.P.No.1655 of 2014** = = = = = = = = = = = = = = = Dated this the 24[th] day of September, 2014 **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.62/2013 on the files of the Additional Sessions Judge-IV, Kottayam. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.253/2011 on the files of the Judicial First Class Magistrate's Court-III, Kanjirappally. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one day till rising of the court and to pay compensation of ₹ 60,000/- to the complainant under Sec.357(3) Cr.P.C and in default of payment of compensation, to undergo simple 2 Crl.R.P.No.1655 of 2014 ## imprisonment for three months. 2. The complainant has alleged that the accused borrowed an amount of 60,000/- from the complainant/1₹ st respondent after executing a Demand Promissory Note and when the complainant demanded the repayment of amount, the accused came to the house of the complainant at Mundakayam and after collecting that Promisory Note, issued Ext.P1 cheque dated 1-3-2009 for 60,000/- drawn on₹ an account maintained by him with the Meenachil East Urban Co-operative Bank, Mundakkayam branch to discharge the debt owed by him. 3. But, it is the specific case of the accused that Ext.P1 cheque was one issued to his friend one Mr.Babu Kalluthottiyil, Mundakkayam, for giving it as a security when he purchased a bike. Indisputably, the accused admitted that, Ext.P1 cheque is one issued from his account and the signature in that cheque is put by him. If that be so, I am of the opinion that the burden is heavy on the Crl.R.P.No.1655 of 2014 3 accused to the extent of preponderance of probabilities by adducing evidence. But, no evidence has been adduced to prove the defence version except his oral evidence, which is self serving one. In the above analysis, I concur with the findings of the court below that the complainant has succeeded in discharging the initial burden of proving the execution and issuance of the cheque whereas the accused miserably failed to rebut the presumption under Sec.139 and 118(a) of the N.I. Act which stood in favour of the complainant. 4. 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 Crl.R.P.No.1655 of 2014 **==> picture [7 x 9] intentionally omitted <==** 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. Therefore, I am not inclined to re-appreciate entire evidence once again and I confirm the concurrent findings of conviction. 5. 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. 5 Crl.R.P.No.1655 of 2014 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 six months. 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 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. 7. Having regard to the nature and gravity of the 6 Crl.R.P.No.1655 of 2014 offence, in the light of the decisions quoted above and submission made at the Bar, expressing willingness to pay the compensation within six months, I am inclined to grant five 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 rising of the court. ii. The Revision Petitioner shall pay a compensation of Rs.60,000/- (Rupees Sixty thousand only) to the 1[st] respondent/complainant within a period of five 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 23[rd] February, 2015 with sufficient proof to show payment of compensation. iv. In default, the Revision Petitioner shall undergo 7 Crl.R.P.No.1655 of 2014 simple imprisonment for a period of three months. v. Warrant, if any, pending in execution of the sentence shall be kept in abeyance till 23[rd] February, 2015. The Criminal Revision Petition is disposed of accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge