Lalithakumari, Saraswathi Sadan, Vanchiyoor P.O., Trivandrum v. K. Sivaprasad, Melethil Veedu, Aranmula and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 4TH DAY OF DECEMBER 2014/13TH AGRAHAYANA, 1936** **Crl.Rev.Pet.No. 195 of 2007 (D) --------------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO.285/2005 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC), FAST TRACK COURT-II, PATHANAMTHITTA.** **AGAINST THE JUDGMENT IN ST 403/2003 of C.J.M. COURT, PATHANAMTHITTA.** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-------------------------------------------** **LALITHAKUMARI, SARASWATHI SADAN, VANCHIYOOR P.O., TRIVANDRUM.** **BY ADV. SRI.MVS.NAMBOOTHIRY** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE:** **----------------------------------------------** **1. K. SIVAPRASAD, MELETHIL VEEDU, ARANMULA.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.ARUN.B.VARGHESE R2 BY PUBLIC PROSECUTOR SRI. ABHIJETT LESSLI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No.195 of 2007 -----------------------------------------------------Dated this the 4[th] day of December, 2014** ## **ORDER** This revision petition is filed challenging the conviction entered and the sentence imposed on the revision petitioner in S.T.No.403/2003 on the files of the Chief Judicial Magistrate's Court, Pathanamthitta, which was confirmed in Crl. Appeal No.285/2005 on the files of the Additional District & Sessions Judge (Adhoc), Fast Track Court-II, Pathanamthitta. The revision petitioner was prosecuted for the offence punishable under Sec.138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') and he was found guilty of the said offence. He was sentenced to undergo simple imprisonment for one year and to pay a sum of **Crl.R.P. No.195 of 2007** -: 2 :- 1,60,000/- to P.W.1 as compensation under Sec.357(3) of the Cr.P.C. The legality, propriety and correctness of the concurrent findings of conviction and sentence are under challenge in this revision petition. 2. The 1[st] respondent's case is that in discharge of a legally enforceable debt/liability due to him, the revision petitioner had issued a cheque dated 4/8/2003 for an amount of `1,60,000/- to the 1[st] respondent. When he presented the cheque for encashment, the same was dishonoured for want of sufficient funds. Per contra, when questioned under Sec.313 of the Cr.P.C., the accused denied the incriminating circumstances brought out in evidence against her and contended that Ext.1 cheque was a blank signed cheque issued to one Sadasivan in the year 1998 as a security to avail a loan to one Gopinathan Nair and the said cheque was not returned in spite of discharge of that liability. 3. After considering both contentions, the trial court found that the 1[st] respondent has discharged his initial burden successfully by proving execution and **Crl.R.P. No.195 of 2007** -: 3 :- issuance of the cheque and thereby the presumption under Secs.118(a) and 139 of the N.I. Act which stand in favour of the 1[st] respondent. 4. Going by the judgments under challenge, it could be seen that though P.W.1 was examined at length and into minute aspects, nothing brought out to discredit his testimony. In appeal, the learned Sessions Judge re-appreciated the evidence of P.W.1 coupled with Exts.P1 to P6 and concurred with the finding that the 1[st] respondent has discharged his initial burden of proving execution and issuance of the cheque. I do not find any reason to interfere with the said finding in the absence of any kind of perversity in the appreciation of evidence. 5. What remains to be considered is whether the revision petitioner had rebutted the presumption which stood in favour of the 1[st] respondent either by adducing positive evidence or by a preponderance of probability? Though the learned counsel for the revision petitioner contended that Ext.P1 cheque was **Crl.R.P. No.195 of 2007** -: 4 :- issued to one Sadasivan in the year1998 as a security to avail a loan to one Gopinathan Nair and the said cheque was not returned in spite of discharge of that liability, no evidence had been adduced to show such a transaction with Sadasivan. When P.W.1 was crossexamined, nothing brought out to prove such a contention raised in defence by the yardstick of at least preponderance of probability. In such circumstances, I also concurred with the concurrent findings of the courts below that the revision petitioner has miserably failed to rebut the presumption which stood in favour of the 1[st] respondent. There is no illegality or impropriety in the verdict of guilt and conviction entered against the revision petitioner. Hence the conviction is confirmed. 6. Coming to the question of sentence, it is seen that the revision petitioner was sentenced to undergo simple imprisonment for one year and to pay a fine of `1,60,000/- to P.W.1 by way of compensation and the same was confirmed by the appellate court also. The **Crl.R.P. No.195 of 2007** -: 5 :- learned counsel for the petitioner contends that the revision petitioner is an old lady and the sentence imposed on her deserves to be reduced and modified. I am of the opinion that the sentence imposed on the revision petitioner is excessive, harsh and disproportionate with the nature and gravity of the offence. 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 **Crl.R.P. No.195 of 2007** -: 6 :- aspect. 8. In view of the legal position cited by the Apex Court as regards the sentence in policy for the offence under Sec.138 of the N.I. Act, I am inclined to reduce the substantive sentence of simple imprisonment for one year to simple imprisonment for one day till rising of the court and I do so. But the direction to pay compensation will stand as such without any interference. Hence this revision petition will stand partly allowed 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 compensation of `1,60,000/- (Rupees One lakh and sixty thousand only) to the 1[st] respondent/complainant 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 -: 7 :- **Crl.R.P. No.195 of 2007** above on or before 5/3/2015 with sufficient proof to show payment of compensation. iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of two months. Sd/- **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge