M/S VYSALI PHARMACEUTICALS LIMITED v. KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 26TH DAY OF JUNE 2013/5TH ASHADHA, 1935** **Crl.Rev.Pet.No. 1152 of 2013 ()** ## **-------------------------------CRL.A. NO.185/2010 OF ADDL. SESSIONS COURT (ADHOC-II), ERNAKULAM. ST. NO.2373/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-VI, ERNAKULAM.** **.............** ## **REVN.PETITIONERS/APPELLANTS/ACCUSED :** **-------------------------------------------------------------------** **1. M/S.VYSALI PHARMACEUTICALS LIMITED, 32/1289 A, CIVIL LINE ROAD, PALARIVATTOM, KOCHI-682 025, REP. HEREIN BY MANAGING DIRECTOR, MR. A.D.KRISHNAN, AGED 45 YEARS.** ## **2. MR. A.D.KRISHNAN,** **AGED 45 YEARS, MANAGING DIRECTOR, M/S. VYSALI PHARMACEUTICALS LIMITED, RESIDING AT 'SWARAM', GOVT. HIGH SCHOOL ROAD, EDAPPALLY, KOCHI-682 024.** ## **3. DR. (MRS.) SAVITHRI KRISHNAN,** - **AGED 40 YEARS, W/O. A.D.KRISHNAN, DIRECTOR, M/S. VYSALI PHARMACEUTICALS LIMITED, RESIDING AT 'SWARAM', GOVT. HIGH SCHOOL ROAD, EDAPPALLY, KOCHI-682 024.** **BY ADVS.SRI.K.R.VINOD, SMT.M.S.LETHA.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANTS :** **-------------------------------------------------------------------------** **1. M/S.KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD. (KSIDC), CHOICE TOWERS, MANORAMA JUNCTION, KOCHI-682 036.** ## **2. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE. ADVS. SRI.SAJI VARGHESE SMT.MARIAM MATHAI SRI.JAJU BABU. R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26-06-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** **Crl.Rev.Pet.No. 1152 of 2013** ## **APPENDIX** **PETITIONER'S ANNEXURES:NIL.** **RESPONDENT'S ANNEXURES:-** **ANNEXURE R1A COPY OF THE AFFIDAVIT FILED BY THE PETITIONER DATED 05/11/2012.** **//TRUE COPY//** **P.A. TO JUDGE.** **rs.** **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No.1152 of 2013 -----------------------------------------------------Dated this the 26[th] day of June, 2013** ## **ORDER** This Revision Petition is filed challenging the concurrent findings of conviction entered and the sentence imposed on the Revision Petitioners for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act') in Criminal Appeal No.185/10 on the files of the court of the Additional Sessions Judge (Adhoc-II), Ernakulam. The above appeal was filed challenging the judgment finding that the Revision Petitioners are guilty of the said offence, passed in C.C.No.2373/08 on the files of the Judicial First Class Magistrate's Court-VI, Ernakulam. According to the impugned judgment, the first accused was sentenced to pay a fine of Rs.5,000/- and accused Nos.2 and 3 were sentenced to undergo simple imprisonment for 3 months and to pay a compensation of Rs.10,65,000/- jointly under Sec.357 Cr.P.C. and in default to undergo simple imprisonment for one month. In appeal, the conviction was Crl.R.P.No.1152/2013 **:2:** confirmed and the sentence was modified to the extent that the first revision petitioner was sentenced to pay a fine of Rs.5000/- and petitioners 2 and 3 were sentenced to undergo simple imprisonment for 3 months each and to pay a compensation of Rs.5,32,500/- each to the complainant under Section 357(1) Cr.P.C. and in default to undergo simple imprisonment for one month each. 2. The learned counsel for the Revision Petitioners reiterated the contentions which were raised before the courts below and got rejected concurrently. The grounds raised before me are also urging for 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 courts below had concurrently found that the complainant/1[st] respondent had successfully discharged initial burden of proving execution and issuance of the cheques; whereas the Revision Petitioners 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 Crl.R.P.No.1152/2013 **:3:** debt due to the 1[st] respondent was a legally enforceable debt and Exts.P2 and P3 cheques were duly executed and issued in discharge of the said debt. The Revision Petitioners failed to point out any kind of perversity in the appreciation of evidence. 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 at. 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 Petitioners submits that challenge under this Revision is confined to sentence only. The learned counsel for the Revision Petitioners submits that the sentence imposed on the Revision Petitioners is disproportionate with the gravity and nature of the offence. He further submits that the Revision Petitioners are willing to pay the compensation as ordered by the court below; but they are unable to raise the said amount forthwith due to paucity of funds. But they are ready to pay the fine and compensation within six months. Crl.R.P.No.1152/2013 **:4:** Learned counsel for the 1[st] respondent also submits that reasonable time can be granted to pay the compensation. 4. Similarly, the substantive sentence imposed on the revision petitioners 2 and 3 is too harsh and excessive. The learned counsel for the revision petitioners 2 and 3 prayed for setting aside the sentence of imprisonment also. If the revision petitioners 2 and 3 are incarcerated for a period as ordered by the courts below, their family will be put in great hardship. 5. The Supreme Court, in the decision in **Kaushalya Devi Massand vs. 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 Crl.R.P.No.1152/2013 **:5:** 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. The learned Standing Counsel for the 1[st] respondent submits that a reasonable modification alone can be made in sentence. Similarly, the substantive sentence of imprisonment for 3 months imposed on the Revision Petitioners 2 and 3 is reduced and modified to simple imprisonment for one day till the rising of the court. Consequently, this Revision Petition is liable to be disposed of subject to the following terms. i. The Revision Petitioners 2 and 3 shall undergo simple imprisonment for one day till rising of the court. ii. The first Revision Petitioner shall pay a fine of Rs.5,000/- (Rupees Five thousand only) within one month from today. Crl.R.P.No.1152/2013 **:6:** iii. The Revision Petitioners 2 and 3 shall pay Rs.5,32,500/- (Rupees Five lakhs thirty-two thousand five hundred only) each to the complainant/1[st] respondent as compensation within a period of six months from today. iv. The Revision Petitioners 2 and 3 shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 01.01.2014 with sufficient proof to show payment of compensation. v. In default, the Revision Petitioners 2 and 3 shall undergo simple imprisonment for a period of one month each. vi. Execution of sentence imposed under the impugned judgment shall be kept in abeyance till 01.01.2014. The Criminal Revision Petition is disposed of accordingly. Sd/- ## **(K. HARILAL, JUDGE)** okb.