High Court of KeralaSingle Judge2013-08-27Revision petition disposed; sentence reduced to...

M. Hussain v. K. Eassa and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 2869 of 2003 (D)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-08-27
Court Decision / Holding: The Criminal Revision Petition is disposed of. The substantive sentence is reduced to simple imprisonment for one day till rising of the court. The petitioner shall pay Rs.62,500 as compensation to the first respondent within three months. The petitioner shall appear before the Trial Court to suffer the sentence on or before 27 November 2013 with proof of payment. In default, the petitioner shall undergo simple imprisonment for two months. Any amount already deposited shall be credited toward the compensation.
Final Disposition: Revision petition disposed; sentence reduced to one day imprisonment; compensation to be paid within three months; appearance for execution by 27 November 2013; default consequences provided; deposits credited.

Parties to the Case

Appellants / Petitioners

M. Hussain

Respondents

K. Eassa
State of Kerala represented by Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• SMT. K.V. Resmi

Counsels for Respondents

• Sri. P. Samsudin
• Sri. Liju V. Stephen

Case Synopsis & Summary

This criminal revision petition by M. Hussain challenges the concurrent conviction for an offence under Section 138 of the Negotiable Instruments Act and the sentence imposed by the Judicial First Class Magistrate, Perintalmanna, as affirmed by the Sessions Court, Manjeri in STC 156/1996 leading to the revision in Crl.Rev.Pet.No.2869/2003. The trial courts held that the petitioner executed and issued the cheque in discharge of a legally enforceable debt, and that the presumptions under Section 118(a) and 139 NI Act stood in the complainant’s favour. The revision petitioner pressed for re-appreciation of evidence, contending perversity and seeking a lighter sentence or alternative remedy. The respondents urged that the concurrent findings should stand and that the criminal proceeding is more than a civil debt recovery, noting that the revisional court may not reweigh evidence absent perversity. The High Court invoked the Supreme Court decisions Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby to emphasize the restorative emphasis of compensation and the practical deemed remedy, acknowledging the petitioner’s willingness to pay within three months. On that basis, the court reduced the substantive sentence to one day imprisonment and granted three months to pay Rs. 62,500 as compensation, with conditions for appearance and default consequences. This revision petition is disposed of accordingly.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 118(a) of the Negotiable Instruments Act, 1881Section 139 of the Negotiable Instruments Act, 1881

Legal Doctrines & Maxims

Offence under Section 138 NI Act is almost in the nature of civil wrong which has been given criminal overtone (Kaushalya Devi Massand v. Roopkishore, AIR 2011 SC 2566)
Direction to pay compensation should be practical and realistic (Vijayan v. Baby, 2011(4) KLT 355)
Compensatory aspect of remedy should be given priority over punitive aspect

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the revision petitioner argued that the revision should be confined to sentence only and challenged the severity and proportionality of the substantive sentence. They urged re-appreciation of evidence, though the revisional court had refused to entertain it absent showing of perversity. The petitioner emphasized willingness to satisfy the compensation and urged a lighter sentence or alternative remedy consistent with the civil-like character of the offence. They stressed financial constraints and hardship to the petitioner’s family, seeking a payment schedule or shorter imprisonment, arguing that a restorative approach serves justice. They invoked Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby to justify relief aimed at practical restitution rather than punitive severity. The counsel urged leniency and flexibility to ensure payment within a reasonable window while avoiding disproportionate punishment.

Contentions of Respondents

Respondents contended that the trial court’s concurrent findings were sound and should not be disturbed in revision. They argued that the presumption under Sections 118(a) and 139 NI Act operated in favour of the complainant and that the debt was legally enforceable. They asserted that revisional courts do not reweigh evidence in the absence of perversity and that the ends of justice require maintaining the conviction and proportionate punishment, with compensation as a component of restitution but without undermining the integrity of the process.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	The court applied the proposition that Section 138 NI Act offences are civil-like with a criminal overtone and that compensation can meet ends of justice.
Vijayan v. Baby	2011(4) KLT 355	Positive	The court followed the principle that compensation in restitution should be practical and realistic.

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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 27TH DAY OF AUGUST 2013/5TH BHADRA, 1935** **Crl.Rev.Pet.No. 2869 of 2003 (D) ---------------------------------** **IN Crl.A 106/2002 of SESSIONS COURT,MANJERI DATED 03-09-2003** **STC 156/1996 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,PERINTHALMANNA DATED 18-05-2002** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------M.HUSSAIN, S/O.MAMMOOTTY, MUNDUKATTIL HOUSE, KUNNAKKAVU.P.O., VIA.CHERUKARA, MALAPPURAM DIST.** **BY ADV. SMT.K.V.RESHMI** **COMPLAINANT(S)/RESPNDENTS & STATE:** **---------------------------------1. K.EASSA, S/O.BEERAN, KURUPPATH HOUSE, NATTYAMANGALAM, CHUNDAPPATTA.P.O., PALAKKAD.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.P.SAMSUDIN R2 BY PUBLIC PROSECUTOR SRI.LIJU.V.STEPHEN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **stu** **Crl.Rev.Pet.No. 2869 of 2003 (D)** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **A1 : TRUE COPY OF THE RECEIPT ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I, PERINTHALMANNA.** **RESPONDENTS' ANNEXURES : NIL** **//TRUE COPY//** **P.A TO JUDGE.** **stu** ## **K.HARILAL, J.** = = = = = = = = = = = **Crl.R.P.No.2869 of 2003** = = = = = = = = = = = = = = = Dated this the 27[th] day of August, 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.106/2002 on the files of the Sessions Judge, Manjeri. 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.156/1996 on the files of the Judicial First Class Magistrate's Court-I, Perintalmanna. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for two months and to pay compensation of 62,500/- to the 1₹ st respondent/complainant within two months, failing which, he shall undergo further simple imprisonment for two Crl.R.P.No.2869 of 2003 2 months. 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/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 Crl.R.P.No.2869 of 2003 3 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 reappreciate 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 learned counsel for the Revision Petitioner submits that 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 within three 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 Crl.R.P.No.2869 of 2003 4 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. 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 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 Crl.R.P.No.2869 of 2003 5 the compensation within three months, I am inclined to grant three 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. 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 Rs.62,500/(Rupees Sixty Two thousand Five hundred only) to the 1[st] respondent/complainant as compensation 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 27[th] November, 2013 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of two months. Crl.R.P.No.2869 of 2003 6 v. If any amount had been deposited before the Trial Court, the same shall be given credit and the balance needs to be paid as compensation. The Criminal Revision Petition is disposed of accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge.