High Court of KeralaSingle Judge2015-06-04Disposal of Criminal Revision Petition with mod...

M.T. Thomas v. State of Kerala and George Joseph

Case / Petition Number:Crl.R.P.No.1349 of 2003

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2015-06-04
Court Decision / Holding: The Criminal Revision Petition is disposed of: conviction affirmed; sentence reduced to simple imprisonment for one day till rising of the court; accused to pay ₹12,000 as compensation to the complainant within two months; appearance before the trial court to suffer the substantive sentence on or before 4 August 2015 with evidence of payment; in default, imprisonment for one more month.
Final Disposition: Disposal of Criminal Revision Petition with modification: conviction upheld; sentence reduced to one day simple imprisonment; compensation of ₹12,000 payable within two months; appearance before trial court by 4 August 2015 to suffer substantive sentence; in default, one additional month imprisonment.

Parties to the Case

Appellants / Petitioners

M.T. Thomas

Respondents

State of Kerala
George Joseph

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T.R. Madhu
• Sri. Ajay John Parayil

Counsels for Respondents

• Public Prosecutor Sri Jibu P. Thomas

Case Synopsis & Summary

This revision petition challenges the concurrent conviction under Section 138 of the Negotiable Instruments Act, 1881, and the accompanying sentence arising from a cheque for ₹10,000 issued to discharge a debt. The complainant alleges the accused, proprietor of a printing press, issued the cheque when the debt became payable; the cheque was dishonoured due to insufficient funds. The accused contends the cheque was issued as security by his father for a press business, not as payment for a debt. The trial court and the Additional Sessions Court found the accused liable, holding that the presumption in favour of the complainant under Sections 139 and 118(a) NI Act stood unrebutted by the defence. The High Court upheld these concurrent findings, observing that mere cross-examination suggestions cannot rebut the presumption, citing Mulammoottil Consumer Credit Ltd. v. Sreenivasan and Kumar Export v. Sharma Carpets. The court also cited Kaushalya Devi Massand v. Roopkishore to emphasize that the offence under Sec. 138 NI Act is largely civil in character with a criminal overlay, and Vijayan v. Baby to stress that restitution/compensation should be practical and realistic. In a discretionary exercise, the court reduced the sentence to simple imprisonment for one day and granted two months to pay ₹12,000, with conditions to appear for serving the substantive sentence if payment is not completed.”

Provisions of Law Cited

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

Legal Doctrines & Maxims

Presumptions under Sections 118(a) and 139 NI Act operate in favour of the complainant and are not easily rebutted by a bare suggestion in cross-examination (Mulammoottil Consumer Credit Ltd. v. Sreenivasan).
A section 138 NI Act offence is almost civil in nature with a criminal veneer, thus motivating a remedy primarily through restitution (Kaushalya Devi Massand v. Roopkishore).
Restitution/restitution-by-compensation should be practical and realistic, prioritizing the compensatory aspect over punitive imprisonment (Vijayan v. Baby).
The proposition in Kumar Export v. Sharma Carpets affirms the above presumption-based approach (affirmation by Supreme Court).

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner urged for re-appreciation of evidence and contended that there was no perversity in the trial court’s findings; the continuous conviction under Sec. 138 NI Act and the sentence were challenged as disproportionate. They submitted that the defence evidence suggested the cheque was given as a security by the accused’s father and not for any legally enforceable debt, but cross-examination failed to rebut the presumption. They sought reduction of sentence and more time to pay the compensation, arguing hardship and the need for a realistic remedy.

Contentions of Respondents

The respondents defended the conviction and the findings of the lower courts, asserting that the cheque was issued in discharge of a legally enforceable debt; the presumption under Sections 118(a) and 139 NI Act stood unrebutted, and the accused failed to rebut it. They relied on established authorities to support the view that the offence under Sec. 138 NI Act has a civil character with a criminal overlay and that compensation must be effectively enforced; they contended that the sentence was not arbitrary and properly justified by the circumstances.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Mulammoottil Consumer Credit Ltd. v. Sreenivasan	2006 (4) KLT 543	Positive	The court relies on the proposition from Mulammoottil that mere suggestion in cross-examination cannot rebut the presumption under Sections 118(a) and 139 NI Act.
Kumar Export v. Sharma Carpets	2009 (1) KLT 197 SC	Positive	The proposition of Mulammoottil is affirmed by the Apex Court in Kumar Export, reinforcing the presumption framework.
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Used to justify treating Sec. 138 NI Act as civil in nature with a criminal overlay and prioritizing restitution.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited for the principle that the compensatory aspect should be practical and prioritized over punitive imprisonment.

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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 4TH DAY OF JUNE 2015/14TH JYAISHTA, 1937** **Crl.Rev.Pet.No. 1349 of 2003 ---------------------------------** ## **Crl.A 213/2000 of ADDL.SESSIONS (SPL.) COURT, KOTTAYAM DATED 22-01-2003** **CC 630/1998 of J.M.F.C.-I, KANJIRAPPALLY DATED 07-07-2000** **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **--------------------------------------------** **M.T.THOMAS, S/o.M.D.THOMAS, MOOLAYIL HOUSE, PONKUNNAM.P.O., KOTTAYAM (DT.)** **BY ADVS.SRI.T.R.MADHU SRI.AJAY JOHN PARAYIL** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT :** **--------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. GEORGE JOSEPH, POTTANKULAM HOUSE, PIGANA, MUNDAKAYAM.P.O., KOTTAYAM (DT.)** **R1 BY PUBLIC PROSECUTOR SRI.JIBU.P.THOMAS.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **STU** ## **K.HARILAL, J.** = = = = = = = = = = = = = = **Crl.R.P.No.1349 of 2003** = = = = = = = = = = = = = = = ==== Dated this the 4[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.213/2000 on the files of the Additional Sessions (Spl.) Judge, Kottayam. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.630/1998 on the files of the Judicial First Class Magistrate's Court-I, Kanjirappally. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one month and to pay a compensation of 12,000/- to the₹ complainant under Section 357(3) Cr.P.C. Crl.R.P.No.1349 of 2003 2 2. The case of the complainant is that the accused is the proprietor of a printing press and he owed an amount of ₹10,000/-, which was borrowed from him and in discharge of that debt, he had issued Ext.P1 cheque for an amount of ₹10,000/and when the cheque was presented for encashment, the same was dishonoured and returned for want of sufficient funds. Per contra, in defence, the accused contended that his father was conducting a press by name 'popular press' and at that time, he had issued Ext.P1 cheque as a security to the complainant. There is no money transaction between the complainant and the accused. After analysing the evidence, the courts below observed that except the suggestion put to PW1 raising the said contention, nothing brought out in cross examination to show that cheque was issued by the father of the accused as a security. Whereas, reliable evidence adduced by the complainant is that the said cheque was issued in discharge of a legally enforcible debt and the presumption under Crl.R.P.No.1349 of 2003 3 Section 139 and 118(a) of the N.I.Act stood in favour of the complainant. 3. The legal position settled by the Apex Court in **Mulammoottil Consumer Credit Ltd. v. Sreenivasan** (2006 (4) KLT 543) is that mere suggestion in cross examination is not sufficient to rebut the presumption under Sections 139 and 118(a) of the N.I.Act. The said proposition is affirmed by the Apex Court in **Kumar Export v. Sharma Carpets** (2009 (1) KLT 197 SC). In view of the above decisions, I find that there is no illegality or impropriety in the finding that the accused miserably failed to rebut the presumption under Section 138 of the N.I.Act. 4. 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 Crl.R.P.No.1349 of 2003 4 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. 5. The courts below had concurrently found that the complainant/2[nd] 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 2[nd] respondent. So also, it is found that the debt due to the 2[nd] respondent was a legally enforceable debt and Ext.P1 cheque was duly executed and issued in discharge of the said debt. 6. 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 Crl.R.P.No.1349 of 2003 5 inclined to re-appreciate entire evidence once again and I confirm the concurrent findings of conviction. 7. At last, 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 contemplated under Section 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. 8. 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. 9. 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 Crl.R.P.No.1349 of 2003 6 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. 10. 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 'two' 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 will stand disposed of subject to the following terms. Crl.R.P.No.1349 of 2003 7 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.12,000/- (Rupees Twelve thousand only) to the 2[nd] respondent within a period of two 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 4[th] August, 2015 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of one month. The Criminal Revision Petition is disposed of accordingly. Sd/- **K.HARILAL, JUDGE.** ## **stu** //True copy// P.A to Judge