High Court of KeralaSingle Judge2013-08-01Disposed of accordingly.

Mohankumar Paikkattu House v. Robin P Mathew and The State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 1561 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-08-01
Court Decision / Holding: The Revision Petition is disposed of accordingly: i) the petitioner shall undergo simple imprisonment for one day till rising of the court; ii) the petitioner shall pay Rs.1,50,000 to the complainant within one month; iii) the petitioner shall appear before the Trial Court to suffer substantive sentence on or before 31 August 2013 with proof of payment; iv) in default, the petitioner shall undergo simple imprisonment for three months; further warrants, if any, shall be kept in abeyance till 31 August 2013.
Final Disposition: Disposed of accordingly.

Parties to the Case

Appellants / Petitioners

Mohankumar Paikkattu House, Perinjottackal P.O., Iravon Village, Pathanamthitta District

Respondents

Robin P Mathew
The State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri Abraham Samson

Counsels for Respondents

• Sri V.V. Mithun
• Sri Liju Stephen

Case Synopsis & Summary

Mohankumar Paikkattu House, the revision petitioner, challenges a concurrent conviction under Section 138 of the Negotiable Instruments Act, 1881, and the accompanying sentence from the Additional Sessions Judge and the Judicial First Class Magistrate’s Court-II, Pathanamthitta. The trial courts held that the complainant had proven execution and issuance of the cheque and that the presumption under Sections 118(a) and 139 NI Act stood unrebutted, establishing a legally enforceable debt and discharge of the debt by issue of the cheque. The petitioner contends for re‑appreciation of evidence, but revisional jurisdiction does not permit re‑weighing evidence for mere perversity; no such perversity was found by the courts below. The respondents rely on the standards set by the NI Act and argue for a reasonable modification of the sentence to reflect justice. The court cites Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC 2566) to emphasise that the offence under Section 138 is quasi‑civil in nature with a criminal overtone and that compensation can meet ends of justice, and Vijayan v. Baby (2011(4) KLT 355) to stress practical restitution. Considering the nature of the offence and the petitioner’s willingness to pay within a month, the judge reduces the substantive sentence to one day’s simple imprisonment and orders payment of Rs. 1,50,000 within one month, with appearance required before 31 August 2013, failing which three months’ imprisonment may be imposed. The petition is disposed of accordingly.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Offence under Section 138 of the NI Act is almost in the nature of civil wrong with criminal overtones; compensation can meet ends of justice.
Restitution in regard to loss due to dishonour of the cheque should be practical and realistic; priority to compensatory remedy over punitive aspect.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that the challenge is limited to sentence and not to conviction; there was no perversity in the appreciation of evidence; seeks re‑appreciation only if perversity is shown; emphasises that the debt was discharged or due and that presumption under NI Act stands; requests leniency in sentencing given the family hardship and willingness to pay compensation within a reasonable period.

Contentions of Respondents

The respondents argue for modification of the sentence to reflect justice while maintaining the conviction; contend for payment of compensation as directed; support the idea that the compensatory aspect should be prioritized and that the offender should be given reasonable time to pay the compensation.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Used to support the view that compensation can meet ends of justice in Section 138 NI Act cases and that the offence is quasi-civil in nature.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to reinforce the principle that restitution/restitutionary compensation should be practical and realistic, privileging the compensatory remedy over punitive measures.

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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 1ST DAY OF AUGUST 2013/10TH SRAVANA, 1935** ## **Crl.Rev.Pet.No. 1561 of 2013 ()** **----------------------------------------CRA 405/2005 of ADDL. SESSIONS COURT,PATHANAMTHITTA. ST 1445/2004 of JUDICIAL FIRST CLASS MAGISTRATE COUER-II,PATHANAMTHITTA.** **........** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **---------------------------------------------------------------------** **MOHANKUMAR PAIKKATTU HOUSE, PERINJOTTACKAL P.O., IRAVON VILLAGE PATHANAMTHITTA DISTRICT.** ## **BY ADV. SRI.ABRAHAM SAMSON** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:** **----------------------------------------------------------------------------------------** ## **1. ROBIN P MATHEW** **VADAKEDATHU PUTHEN VEEDU, MYLAPRA PATHANAMTHITTA DISTRICT-689671.** ## **2. THE STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, KOCHI.** **R1 BY ADV. SRI.V.V.MITHUN R2 BY PUBLIC PROSECUTOR SRI.LIJU STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **tss** **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 1561 of 2013 -----------------------------------------------------Dated this the 1[st] day of August, 2013** ## **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.405/2005 on the files of the Additional Sessions Judge, Pathanamthitta. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.1445/2004 on the files of the Judicial First Class Magistrate's Court-II, Pathanamthitta. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for three months and to pay compensation of 1,50,000/- and₹ the same is to be paid to the 1[st] respondent/complainant under Sec.357(3) of the Code of Criminal Procedure. In 2 ## **Crl.R.P. No. 1561 of 2013** default, to undergo simple imprisonment for a period of three 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 **Crl.R.P. No. 1561 of 2013** 3 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 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 one month. The learned counsel for the 1[st] respondent/complainant submits that a reasonable modification can be made in the sentence. **Crl.R.P. No. 1561 of 2013** 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 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. **Crl.R.P. No. 1561 of 2013** 5 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 one month, I am inclined to grant one month 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 a compensation of Rs.1,50,000/- (Rupees One lakh Fifty thousand only) to the 1[st] respondent within a period of one month 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 31[st] August,2013 with sufficient proof to show payment of compensation . 6 ## **Crl.R.P. No. 1561 of 2013** 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 under the impugned judgment shall be kept in abeyance till 31[st] August, 2013. The Criminal Revision Petition is disposed of accordingly. ## **(K. HARILAL, JUDGE)** stu //True copy// P.A to Judge. **Crl.R.P. No. 1561 of 2013** 7