High Court of KeralaSingle Judge2015-06-23Revision petition disposed of; sentence reduced...

Liju Jose v. Thomas Joseph and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 743 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2015-06-23
Court Decision / Holding: Criminal Revision Petition disposed of: sentence reduced to simple imprisonment for one day till rising of the court; compensation of Rs.7,00,000 to be paid within six months (credit allowed for any deposits); the petitioner to appear before the trial court by 22/12/2015 to suffer remaining sentence if compensation is not fully paid, with default resulting in a further three months of simple imprisonment.
Final Disposition: Revision petition disposed of; sentence reduced to one day simple imprisonment; Rs.7,00,000 compensation to be paid within six months; six months period for payment; appearance before trial court by 22/12/2015 for compliance; default leads to three months imprisonment.

Parties to the Case

Appellants / Petitioners

Liju Jose

Respondents

Thomas Joseph
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Anil K. Mohammed
• V.S. Mansoor

Counsels for Respondents

• Public Prosecutor, Justin Jacob

Case Synopsis & Summary

The Kerala High Court, Ernakulam, heard Crl.Rev.Pet.No.743 of 2015, a criminal revision filed by Liju Jose challenging concurrent convictions under Sec.138 of the Negotiable Instruments Act, 1881, arising from the trial in ST 50/2007 (J.M.F.C. III, Kanjirappally) and the subsequent conviction in C.A.345/2009 of the Sessions Court, Kottayam. The lower courts held that the cheque was issued to discharge a legally enforceable debt and that the complainant had established the execution and issuance of the cheque, with the presumption in favour of the complainant under Sec.118(a) and 139 NI Act. The revisionist sought re‑appreciation of evidence, a remedy unavailable in revisional jurisdiction absent perversity. He also challenged the severity of the sentence, arguing disproportionate imprisonment and seeking leniency in view of hardship. The court relied on Supreme Court precedents Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby, emphasizing the civil nature of the offense with criminal overtones and prioritizing the compensatory aspect of remedy over punitive measures, advocating practical restitution. Accordingly, the court granted six months to pay the compensation and reduced the substantive sentence to simple imprisonment for one day till the rising of the court, directing payment of Rs.7,00,000 within six months and allowing credit for any deposit. The revision petition was disposed of on these terms, with the accused to appear by 22/12/2015 for compliance or face further imprisonment on default.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 357(3) of the Code of Criminal ProcedureSection 118(a) and 139 of the Negotiable Instruments Act, 1881

Legal Doctrines & Maxims

The offence under Section 138 of the NI Act is almost in the nature of a civil wrong which has been given criminal overtone (Kaushalya Devi Massand v. Roopkishore)
Restitution and compensation take precedence over punitive imprisonment in NI Act cases; practical and realistic restitution is primary in such prosecutions (Vijayan v. Baby)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner argued that re‑appreciation of evidence is not permissible in revision unless perversity is shown; the trials and concurrent findings should not have been disturbed. He contended that the debt evidenced by Ext.P1 was legally enforceable and that the presumption under Sec.118(a) and 139 NI Act stood in favour of the complainant. He requested reduction of sentence and flexibility in payment of compensation, citing hardship, and urged for a limited, proportionate punishment.

Contentions of Respondents

The respondents maintained the concurrent findings on guilt and the sentence; they argued there was no perversity in appreciation of evidence and that the presumption in favour of the holder of the cheque was correctly applied. They pressed for upholding the lower court’s conviction and sentence, consistent with the nature of the offense.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Cited to support that NI Act Sec.138 offense has civil character with criminal overlay and that lenient, compensatory relief can meet ends of justice.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to emphasize practical, realistic restitution and prioritizing the compensatory aspect over punitive measures in NI Act prosecutions.

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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** **TUESDAY, THE 23RD DAY OF JUNE 2015/2ND ASHADHA, 1937** **Crl.Rev.Pet.No. 743 of 2015** **----------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO. 345/2009 of SESSIONS COURT, KOTTAYAM DATED 7/1/2010.** **AGAINST THE JUDGMENT IN ST 50/2007 of J.M.F.C.III, KANJIRAPPALLY DATED 20/7/2009.** **REVISION PETITIONER(S)APPELLANT/ACCUSED:** **----------------------------------------** **LIJU JOSE, S/O. M.P. JOSE, MOONKELY HOUSE, NORTH PARAVOOR (PO), NORTH PARAVOOR, ERNAKULAM DISTRICT.** **BY ADVS.SRI.ANIL K.MOHAMMED SRI.V.S.MANSOOR** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------** **1. THOMAS JOSEPH, PARAMPIL HOUSE, KUNNUMBHAGOM, K.K. ROAD, KANJIRAPPLY (PO), KANJIRAPPALLY-682 337.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R2 BY PUBLIC PROSECUTOR SRI. JUSTIN JACOB** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** ## **-----------------------------------------------------Crl.R.P. No. 743 of 2015 -----------------------------------------------------Dated this the 23[rd] day of June, 2015** ## **ORDER** Though notice had been duly served on the 1[st] respondent/complainant, he has not chosen to enter appearance to contest this revision petition on merits. 2. 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.345 of 2009 on the files of the Sessions Judge, Kottayam. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.C.No.50 of 2007 on the files of the Judicial First **Crl.R.P. No. 743 of 2015** -: 2 :- Class Magistrate's Court-III, Kanjirappally. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one year for the offence under Sec.138 of the N.I. Act and to pay a compensation of `7 lakhs to the complainant under Sec.357(3) of the Cr.P.C. In default of payment of compensation, the accused shall undergo simple imprisonment for a further period of three months. 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. The courts below had concurrently found that the complainant/1[st] respondent had successfully discharged initial burden of proving execution and issuance of the cheque; **Crl.R.P. No. 743 of 2015** -: 3 :- 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. 3. 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 **Crl.R.P. No. 743 of 2015** -: 4 :- funds. But he is ready to pay the compensation within six months. 4. 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 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 put in great hardship. 5. 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 **Crl.R.P. No. 743 of 2015** -: 5 :- under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect. 6. 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 the compensation within six months, I am inclined to grant six months time to pay the compensation. Similarly, the substantive sentence of imprisonment is reduced and modified to simple imprisonment for one day till rising of the court. In supersession of the sentence imposed by the trial court and confirmed by the appellate court, the revision petitioner will stand 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 Rs.7,00,000/- (Rupees Seven lakhs only) to the 1[st] respondent as compensation within **Crl.R.P. No. 743 of 2015** -: 6 :- a period of six months from today under Sec.357(3) of the Cr.P.C. If he had deposited any amount, the same shall be given credit to and the balance alone needs to be paid as compensation to the complainant. In that event, the complainant is allowed to realise such deposit, if any. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 22/12/2015 with sufficient proof to show payment of compensation or such deposit, if any. 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)** **Nan/** **//true copy//** **P.S. to Judge** **Crl.R.P. No. 743 of 2015** -: 7 :-