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High Court of KeralaSingle JudgeCriminal Revision Petition disposed of; convict...

Mathew Joseph @ Mathai v. Subair & State of Kerala

Case / Petition Number:Crl.R.P. No.741 of 2015

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Harilal
Judgment Date
2015-06-23
Court Decision / Holding
The Criminal Revision Petition is disposed of with the conviction upheld and the sentence modified to prioritize restitution: one day simple imprisonment till rising of the court; fine of Rs. 8,00,000 to be paid within six months as compensation under Sec. 357(1) Cr.P.C.; the petitioner to appear by 23/12/2015 with proof of payment; default triggers three months imprisonment; warrants, if any, kept in abeyance for six months.
Final Disposition
Criminal Revision Petition disposed of; conviction upheld; sentence modified to provide six months for payment of compensation and related conditions; no remand for rehearing; overall order confirms lower court findings on guilt.

Parties to the Case

Appellants / Petitioners

  • Mathew Joseph @ Mathai

Respondents

  • Subair
  • State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. Santharam P.
  • • SMT. Rekha Aravind

Counsels for Respondents

  • • Public Prosecutor, Sri Justine Jacob

Case Synopsis & Summary

Mathew Joseph @ Mathai v. Subair & State of Kerala concerns a criminal revision of a cheque-bounce case under Sec. 138 NI Act. The petitioner, convicted by the Judicial First Class Magistrate, Perambra, and upheld by the III Additional Sessions Court, Kozhikode, seeks to overturn the conviction or modify the sentence in revision before the Kerala High Court. The court examines whether the evidence was perverse or improperly appreciated, noting that revisional jurisdiction permits interference only for perversity, illegality, or impropriety in the trial court’s findings. The prosecution had established the execution and issuance of the cheque and demand for repayment; the trial court presumption under Sections 118(a) and 139 NI Act stood in favor of the complainant, and the debt was legally enforceable. The revision petition cites Supreme Court and High Court precedents emphasizing that the offence under Sec. 138 NI Act is akin to a civil wrong with criminal overtones and that compensation may meet justice's ends; The High Court endorses these principles and rejects the request for re-appreciation. The court balances the gravity of the offence with the need for practical remedy, granting six months to pay Rs. 8,00,000 as compensation, imposing a one-day imprisonment, and keeping warrants in abeyance to allow payment. The petition is disposed of with these terms, upholding the concurrent conviction while modifying the sentence to prioritize restitution.

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, 1881Section 357(1) of the Cr.P.C.

Legal Doctrines & Maxims

  • Offence under Section 138 of the NI Act is almost in the nature of a civil wrong with a criminal overtone; imposition of fine/compensation can meet the ends of justice (Kaushalya Devi Massand v. Roopkishore, AIR 2011 SC 2566).
  • Compensation by way of restitution in regard to loss due to dishonour of cheque should be practical and realistic (Vijayan v. Baby, 2011(4) KLT 355).

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner urged for a re-appreciation of the evidence, contending that the trial court’s findings were not perverse and that revisional jurisdiction does not permit re-evaluation unless perversity is shown. He sought relief for time to pay the compensation and questioned the severity of the sentence. The counsel emphasized that the evidence should be re-examined and that the court should correct any legal missteps by the lower courts.

Contentions of Respondents

The respondents argued that the courts below correctly evaluated the evidence, with the complainant discharging the burden of proving execution and issuance of the cheque. The presumption under Sections 118(a) and 139 NI Act stood in favor of the complainant, and the debt was legally enforceable. The petitioner's contentions for re-appreciation were inappropriate in revisional jurisdiction; the findings were sound and the conviction proper.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Kaushalya Devi Massand v. RoopkishoreAIR 2011 SC 2566PositiveCited to establish that Sec. 138 NI Act offences are akin to civil wrong with a criminal overtones and compensation can meet ends of justice.
Vijayan v. Baby2011(4) KLT 355PositiveCited to support practical and realistic restitution as a remedy 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. 741 of 2015** **---------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO. 304/2013 of III ADDITIONAL SESSIONS COURT, KOZHIKODE, DATED 21-10-2014.** **AGAINST THE JUDGMENT IN ST 1110/2010 of J.M.F.C-I, PERAMBRA DATED 31-05-2013.** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **-----------------------------------------** **MATHEW JOSEPH @ MATHAI, AGED 51 YEARS, S/O.JOSEPH, AMMUMMANIL HOUSE, CHEMBANODA PO., PILLAPERUMANNA DESOM, KOYILANDY TALUK, KOZHIKODE.** **BY ADVS.SRI.SANTHARAM.P SMT.REKHA ARAVIND** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: -----------------------------------------------** **1. SUBAIR, AGED 34 YEARS, S/O.IBRAHIM HAJI, PILACHERY HOUSE, MUTHUVANACHA PO KUTTIADI VIA KOZHIKODE.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R2 BY PUBLIC PROSECUTOR SRI. JUSTINE 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.741 of 2015 -----------------------------------------------------Dated this the 23[rd] 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.304 of 2013 on the files of the III Additional Sessions Judge, Kozhikode Division. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.1110 of 2010 on the files of the Judicial First Class Magistrate's Court-I, Perambra. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple **Crl.R.P. No.741 of 2015** -: 2 :- imprisonment till the rising of the court and to pay a fine of `8 lakhs. In default of payment of fine, the accused is sentenced to undergo simple imprisonment for a period of three months. If the fine amoount is realised, it will be given to the complainant as compensation under Sec.357(1) 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 or illegality or impropriety in the findings whereby the trial court convicted him. 3. The courts below had concurrently found that the complainant/1[st] respondent had successfully **Crl.R.P. No.741 of 2015** -: 3 :- 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. 4. 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. 5. At last, the learned counsel for the Revision Petitioner submits that the sentence imposed on the Revision Petitioner is disproportionate with the gravity **Crl.R.P. No.741 of 2015** -: 4 :- and nature of the offence contemplated under Sec.138 of the N.I. Act. The learned counsel further sought for some time to pay the compensation as he is unable to raise the said amount forthwith due to paucity of funds, if this revision petition is found liable to be dismissed. 6. 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 **Crl.R.P. No.741 of 2015** -: 5 :- punitive aspect. 7. 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, I am inclined to grant six 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 fine of `8,00,000/- (Rupees Eight lakhs only) within a period of six months from today to the 1[st] respondent as compensation under Sec.357(1) of the Cr.P.C. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 23/12/2015 with ## **Crl.R.P. No.741 of 2015** -: 6 :- sufficient proof to show payment of compensation. iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months. v. Warrant, if any pending in execution of the sentence imposed on the revision petitioner/accused under the impugned judgment, shall be kept in abeyance for a period of six months from today. The Criminal Revision Petition is disposed of accordingly. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge **Crl.R.P. No.741 of 2015** -: 7 :-