K.R. Bhasi v. State of Kerala and Viswanathan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 17TH DAY OF JULY 2015/26TH ASHADHA, 1937** **Crl.Rev.Pet.No. 4108 of 2006 (C) ---------------------------------** **CRL.A 22/2004 of ADDL. SESSIONS JUDGE, FAST TRACK COURT (ADHOC)-IV, THIRUVANANTHAPURAM** **CC 834/2001 of J.M.F.C.-I, ATTINGAL** **REVISION PETITIONER/APPELLANT/ACCUSED::** **-----------------------------------------** **K.R. BHASI, S/O. REGHUNANTHAN, KUZHIVILA VEEDU, KEEZH CHERRY MURI, KALAMACHAL (PO) VAMANAPURAM VILLAGE, NEDUMANGAD TALUK.** **BY ADVS.SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP** **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT::** **----------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **2. VISWANATHAN NAIR, S/O. KOCHUNARAYANAN THAMPI, SISIRATHIL, MUDAPURAM KIZHUVILOM DESOM, KIZHUVILOM VILLAGE.** **R1 BY PUBLIC PROSECUTOR SRI.JIBU.P.THOMAS. R2 BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-07-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **STU** ## **K.HARILAL, J.** = = = = = = = = = = = = = = ## **Crl.R.P.No. 4108 of 2006** = = = = = = = = = = = = = = = ==== Dated this the 17[th] day of July, 2015 ## **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.22/2004 on the files of the Additional Sessions Judge, Fast Track Court (Adhoc) No.IV, Thiruvananthapuram. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.834/2001 on the files of the Judicial First Class Magistrate's Court-I, Attingal. 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 a compensation of 1,00,000/- to the₹ Crl.R.P.No. 4108 of 2006 2 complainant under Section 357(3) of the Code of Criminal Procedure and in default, to undergo simple imprisonment for three months. 2. The complainant's case is that the accused borrowed an amount of 1,00,000/- from him and in discharge of the said liability, he issued Ext.P1 cheque for an amount of 1,00,000/- to him. When the cheque was₹ presented for encashment, the same was dishonoured for want of sufficient funds. The accused, in 313 statement, contended that the accused and the complainant are close friends and they are the workers of the same political party and misusing that opportunity, the complainant had stolen away the signed cheque kept by him in his diary and by misusing the same, the complaint was filed. But, the accused has no case that he had filed any complaint to any authority regarding the alleged theft of the cheque by the complainant. He did not adduce any evidence before the court to substantiate the said contention or the Crl.R.P.No. 4108 of 2006 3 circumstance under which he kept signed blank cheque in his diary. In the absence of evidence, the court below is justified in finding that the accused miserably failed to rebut the presumption which stood in favour of the complainant. There is no illegality or impropriety in the said finding, particularly, when the complainant successfully discharged his initial burden of proving execution and issuance of the cheque. 3. 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 or illegality or impropriety in the findings whereby the trial court convicted him. Crl.R.P.No. 4108 of 2006 4 4. The courts below had concurrently found that the complainant/2[nd] 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 2[nd] respondent. So also, it is found that the debt due to the 2[nd] respondent was a legally enforceable debt and Ext.P1 cheque was duly executed and issued in discharge of the said debt. 5. This Court is satisfied that the courts below had meticulously evaluated the evidence on record. 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. 6. At last, the learned counsel for the Revision Petitioner submits that the sentence imposed on the Crl.R.P.No. 4108 of 2006 5 Revision Petitioner is disproportionate with the gravity and nature of the offence contemplated under Section 138 of the N.I. Act. The learned counsel further sought for sometime to pay the compensation if the revision is found meritless as he is unable to raise the said amount forthwith due to paucity of funds. 7. 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. Crl.R.P.No. 4108 of 2006 6 8. Having regard to the nature and gravity of the offence, in the light of the decisions quoted above and submission made at the Bar, seeking some time to pay compensation, I am inclined to grant three months time to pay the compensation. Consequently, this Revision Petition will stand 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.1,00,000/- (Rupees One lakh only) to the 2[nd] respondent/complainant within a period of three months from today. If the petitioner had deposited any amount in the trial court in compliance with the interim order of this Court or appellate court, the same shall be given credit to and the balance alone needs to 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 19[th] October, 2015 with Crl.R.P.No. 4108 of 2006 7 sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months. The Criminal Revision Petition is disposed of accordingly. Sd/- **K.HARILAL, JUDGE.** ## **stu** //True copy// P.A to Judge