Mujeeb Rahman T. S. v. Riyasu and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 10TH DAY OF JUNE 2013/20TH JYAISHTA 1935** **Crl.Rev.Pet.No. 1037 of 2013 () --------------------------------** **AGAINST THE ORDER/JUDGMENT IN CRA 193/2012 of ADDL. SESSIONS COURT (SPL.COURT FOR TRIAL FOR MARADU CASES)KOZHIKODE** **AGAINST THE ORDER/JUDGMENT IN ST 30/2011 of J.M.F.C.-II,KOYILANDY DATED REVISION PETITIONER(S)/REVN.PETITIONER/APPELLANT/ACCUSED :** **-----------------------------------------------------------------------** **MUJEEB RAHMAN T. S/O. USMAN, THARAYIL HOUSE, PADIKKUNNU NILAMBUR P.O., NILAMBUR AMSOM DESOM MALAPPURAM DISTRICT.** **BY ADV. SRI.DEVAPRASANTH.P.J.** **COMPLAINANT(S)/RESPONDENT/COMPLAINANT AND STATE :** **-----------------------------------------------------------------------** **1. RIYASU, AGED 38 YEARS S/O. IMBICHI ALI, MUTHIRAKKALAYIL HOUSE, VENGALAM P.O. KOZHIKODE-673 303.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R2 BY PUBLIC PROSECUTOR SMT. LIJU V. STEPHEN.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10-06-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K. HARILAL, J. ----------------------------------------------------Crl. R.P. No. 1037 of 2013 ----------------------------------------------------Dated this the 10[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 Petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the N.I. Act') in Criminal Appeal No.193/12. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T. No.30/11 on the files of Judicial First Class Magistrate's Court-II, Koyilandy. According to the impugned judgment, the Revision Petitioner is sentenced to pay a fine of Rs.6,13,000/- (Rupees six lakhs and thirteen thousand only) and in default of payment of fine, to undergo **Crl. R.P. No. 1037 of 2013** -: 2 :- simple imprisonment for a period of two months. If the fine amount is realised, it shall be given to the complainant as compensation under Sec.357(1) 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 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 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.P.2 cheque was duly executed and issued in discharge of the said debt. The Revision Petitioner failed to point out any kind of perversity in the appreciation of evidence. I do not find any kind of **Crl. R.P. No. 1037 of 2013** -: 3 :- 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 learned counsel for the revision petitioner submits that Ext.P3 is the memo issued from the Nilambur Co-operative Bank, Nilambur Branch, dated 19/1/09, Ext.P4 is the memo issued from the Canara Bank, Cherooty Road Branch dated 29/1/09 and Ext.P5 is the lawyer's notice demanding cheque amount dated 31/1/09. The complainant himself admitted that he went abroad on 20/1/09, after entrusting the cheque to the bank. On a conjoint reading of Exts.P3, P4 and P5, it could be seen that when the lawyer's notice was issued, the revision petitioner was abroad and the same was issued without the instruction of the complainant. Therefore, the lawyer's notice can be presumed to be one issued without the instruction of the complainant and thereby the same is bad in law, in view of Sec.138(b) of the N.I. Act. This is the sole point raised by **Crl. R.P. No. 1037 of 2013** -: 4 :- the learned counsel. According to Sec .138(b) of the N.I. Act, the payee the holder in due course should have demanded for payment of the cheque. In the absence of the complainant in India, it could be reasonably presumed that the same was issued without the instruction of the complainant. I am unable to accept the said argument. Going by Ext.P5, it is evident that, that notice is issued under the instruction of the complainant. An instruction can be given over telephone or in writing or through electronic media, while working abroad. Therefore, the argument that at the time of issuing notice, the complainant working abroad is of no consequence at all. 4. The counsel for the Revision Petitioner submits that the 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 **Crl. R.P. No. 1037 of 2013** -: 5 :- due to paucity of funds. But he is ready to pay the compensation/fine within six months. 5. The Supreme Court, in the decision in 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. 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. Consequently, this Revision is liable to be disposed of subject to the **Crl. R.P. No. 1037 of 2013** -: 6 :- following terms. i. The Revision Petitioner shall pay Rs.6,13,000/(Rupees six lakhs and thirteen thousand only) within a period of six months from today to the complainant/1[st] respondent as compensation. ii. The revision petitioner shall appear before the trial court either in person or through counsel to show proof of the payment of compensation on or before 11/12/2013. iii. In default of payment of compensation, he shall undergo simple imprisonment for a period of two months. The Criminal Revision Petition is disposed of accordingly **Sd/(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. To Judge # **Crl. R.P. No. 1037 of 2013** -: 7 :-