High Court of KeralaSingle Judge2015-06-11Criminal Revision Petition disposed of with mod...

M. Usman v. A. Neelakandan Nambeesan and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No.1510 of 2002

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2015-06-11
Court Decision / Holding: The Criminal Revision Petition is disposed of: the sentence is reduced from three months to simple imprisonment for one day till the rising of the court; the petitioner must pay Rs.18,000 to the legal heirs of the deceased complainant under Section 357(3) Cr.P.C. within three months; the petitioner must appear before the trial court to suffer the substantive sentence on or before 11/09/2015 with proof of payment; in default, he shall undergo one month of simple imprisonment.
Final Disposition: Criminal Revision Petition disposed of with modified sentence and directions for compensation and appearance.

Parties to the Case

Appellants / Petitioners

M. Usman

Respondents

A. Neelakandan Nambeesan
State of Kerala, represented by the Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Lalji P. Thomas

Counsels for Respondents

• Public Prosecutor, Sri. Justin Jacob

Case Synopsis & Summary

The Kerala High Court, in a criminal revision petition by M. Usman, challenges the concurrent convictions under Section 138 of the Negotiable Instruments Act, 1881 and the concurrent sentence of three months’ imprisonment plus compensation of Rs. 18,000 awarded by the trial court and affirmed by the Addl. Sessions Court (Ad hoc) Kalpetta and the JMC Mananthavady STC. The revision petition contends that the revisional court should not re‑appreciate the evidence unless perversity is shown, and presses that the complainant established execution and issuance of the cheque, with the revision petitioner failing to rebut the presumption under Sections 118(a) and 139 NI Act. The petitioner also argues for leniency in sentence, noting financial hardship and proposing payment of compensation within a set period. The court references Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC 2566) and Vijayan v. Baby (2011(4) KLT 355) to emphasize that S.138 offences are civil‑like with criminal overlay and that restitution/compensation should be prioritized and rendered practically. Ultimately, the court holds that the substantive sentence is disproportionate and reduces it to simple imprisonment for one day till rising of the court, while directing payment of Rs.18,000 to the legal heirs within three months, with a further appearance by 11/09/2015 and a default provision of one month imprisonment. The petition is disposed of accordingly.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Offence under Section 138 of the 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)
Compensation/restitution in regard to loss on account of dishonour of the cheque should be practical and realistic (Vijayan v. Baby, 2011(4) KLT 355)

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the revision petitioner argued that the revision is limited to sentencing and that the courts below erred in convicting without perversity, urging re‑appreciation of evidence but noting that revisional jurisdiction requires perversity and that the complainant had established execution and issuance of the cheque while the petitioner had failed to rebut the presumption under Sections 118(a) and 139 NI Act. He pressed that the three‑month imprisonment is harsh and disproportionate, and requested a reduction in sentence. He also asserted willingness to pay the compensation but sought time (three months) due to financial constraints, relying on Kaushalya Devi Massand and Vijayan to support prioritization of the compensatory aspect over punitive aspects.

Contentions of Respondents

Respondents contended that the trial and appellate courts correctly found execution and issuance of the cheque and upheld the presumption in favour of the complainant under Sections 118(a) and 139 NI Act, with a legally enforceable debt. They argued there was no perversity in the appreciation of evidence and that the sentence should not be unduly reduced. The respondents rely on the established jurisprudence that the cheque dishonour constitutes a civil wrong with criminal overtones and that the remedy should incorporate restitution to the complainant, not merely punitive punishment.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Cited to support the view that Section 138 NI Act offences resemble civil wrongs with criminal overtones and that compensatory relief can meet ends of justice.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to emphasize that the direction to pay compensation by way of 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** **THURSDAY, THE 11TH DAY OF JUNE 2015/21ST JYAISHTA, 1937** **Crl.Rev.Pet.No. 1510 of 2002** **---------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO. 19/1996 of ADDITIONAL SESSIONS COURT (ADHOC), KALPETTA.** **AGAINST THE JUDGMENT IN STC.NO. 1587/1993 of J.M.F.C, MANANTHAVADY.** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **-----------------------------------------** **SRI. M.USMAN, MURIKKANCHERY HOUSE, PANAMARAM P.O., MANANTHAVADY.** **BY ADV. SRI.LALJI P.THOMAS** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **-------------------------------------** **1. SRI.A.NEELAKANDAN NAMBEESAN, APUZHA HOUSE, PANAMARAM, MANANTHAVADY.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY PUBLIC PROSECUTOR SRI. JUSTIN JACOB** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 1510 of 2002 -----------------------------------------------------Dated this the 11[th] day of June, 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.19 of 1996 on the files of the Additional Sessions Judge (Ad-hoc), Kalpetta. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.1587 of 1993 on the files of the Judicial First Class Magistrate's Court, Mananthavady. According to the impugned judgment, **Crl.R.P. No. 1510 of 2002** -: 2 :- the Revision Petitioner is sentenced to undergo simple imprisonment for three months and he is also directed to pay a compensation of `18,000/- to the complainant under Sec.357(3) of the Cr.P.C. 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 **Crl.R.P. No. 1510 of 2002** -: 3 :- 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 funds. But he is ready to pay the compensation within three months. **Crl.R.P. No. 1510 of 2002** -: 4 :- 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 under Section 138 of the N.I. Act, the compensatory **Crl.R.P. No. 1510 of 2002** -: 5 :- 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 the submission made at the Bar, expressing willingness to pay the compensation within three months, I find that the sentence imposed on the revision petitioner is excessive and disproportionate with the nature and gravity of the offence. Consequently, the substantial sentence of three months will stand reduced and modified to the simple imprisonment for one day till rising of the court. In supersession of the sentence imposed by the trial court and modified by the appellate court, the revision petitioner will stand convicted as follows: i. The Revision Petitioner shall undergo simple imprisonment for one day till rising of the court. ii. The Revision Petitioner shall pay **Crl.R.P. No. 1510 of 2002** -: 6 :- Rs.18,000/- (Rupees Eighteen thousand only) to the legal heirs of the deceased complainant as compensation under Sec.357(3) of the Cr.P.C. 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 11/9/2015 with sufficient proof to show payment of compensation to the legal heirs of the deceased complainant. iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of one month. The Criminal Revision Petition is disposed of accordingly. ## **(K. HARILAL, JUDGE)** ## **Nan/** **Crl.R.P. No. 1510 of 2002** -: 7 :- **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 1510 of 2002 -----------------------------------------------------Dated this the 11[th] day of June, 2015** ## **ORDER**