High Court of KeralaSingle Judge2013-07-30Criminal Revision Petition disposed of with mod...

N. Balan v. State of Kerala and V. Paulraj

Case / Petition Number:Crl.Rev.Pet.No. 1409 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-07-30
Court Decision / Holding: The Criminal Revision Petition is disposed of; the conviction stands, but the sentence is re-calibrated as follows: (i) simple imprisonment for one day till the rising of the court; (ii) compensation of Rs. 2,00,000 to be paid within four months; (iii) the petitioner to appear before the Trial Court to suffer the substantive sentence on or before 29/11/2013 with proof of payment; (iv) in default, to undergo simple imprisonment for two months.
Final Disposition: Criminal Revision Petition disposed of with modified sentencing: one day simple imprisonment and four months to pay Rs. 2,00,000 as compensation; default leads to two months more imprisonment; time granted for payment and appearance before Trial Court.

Parties to the Case

Appellants / Petitioners

N. Balan S/o Aarumughan, Managing Trustee, Maha Ganapathy Mandir Trust

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
V. Paulraj S/o Veerpathiran

Legal Representation & Advocates

Counsels for Petitioners

• Sri T. C. Suresh Menon
• Sri P. S. Appu
• Sri A. R. Nimod

Counsels for Respondents

• Sri Liju V. Stephen (Public Prosecutor)

Case Synopsis & Summary

This is a criminal revision petition filed by N. Balan challenging a concurrent conviction under Section 138 of the Negotiable Instruments Act and the sentence awarded by the trial court (two months’ simple imprisonment and Rs. 2,00,000 as compensation under Section 357(3) CrPC). The Additional District Court (Ad hoc) Palakkad confirmed the conviction in Cr. Appeal No. 262/2011 and upheld the sentence. The High Court of Kerala, during hearing on 30 July 2013, noted the complainant’s successful proof of execution and issuance of the cheque and the presumption under Sections 118(a) and 139 NI Act in favour of the complainant, but exercised its discretionary power to modify the punishment in light of relevant precedents. Relying on Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC 2566) and Vijayan v. Baby (2011(4) KLT 355), the court underscored that section 138 offences resemble civil wrongs with criminal overtone and that the compensatory remedy should generally be prioritized over punitive measures. The court reduced the substantive sentence to simple imprisonment for one day till the rising of the court and directed payment of Rs. 2,00,000 as compensation within four months, with a further two months’ imprisonment if default occurs. The revision petition was disposed of accordingly with time to pay the compensation and with conditional compliance obligations.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Offence under Section 138 NI Act is quasi-civil wrong with criminal overtone; imposition of compensation can meet ends of justice.
Restitution/restitution in regard to the loss on account of dishonour of cheque should be practical and realistic; compensatory aspect of remedy should be given priority over punitive aspect.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the court should not re-appreciate evidence unless perversity is shown, and that the challenge is confined to sentencing. He urges that the sentence be tempered in light of the accused’s family hardship, seeks permission to pay compensation within four months, and relies on the asserted rehabilitative approach seen in Kaushalya Devi Massand and Vijayan v. Baby to emphasize practical restitution over punitive measures.

Contentions of Respondents

The State, represented by the Public Prosecutor, argued that the concurrent findings of conviction should stand, and that the revision is aimed at sentencing. The respondent-complainant did not appear to contest merits on record; the court was invited to apply the NI Act framework with emphasis on presumption in favour of the complainant and ensure compensation, allowing four months for payment; no contrary contention was advanced to rebut the trial court’s conclusion.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Cited to illustrate that Section 138 NI Act offences are quasi-civil with criminal overtones and that compensation may suffice to meet ends of justice.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to support the prioritization of the compensatory/remedial aspect and practical restitution 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 30TH DAY OF JULY 2013/8TH SRAVANA, 1935** **Crl.Rev.Pet.No. 1409 of 2013 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 262/2011 of ADDITIONAL DISTRICT & SESSIONS COURT (AD HOC)-I, PALAKKAD.** **AGAINST THE JUDGMENT IN C.C.NO.289/10 of J.M.F.C.-I, PALAKKAD.** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **-----------------------------------------** **N.BALAN, S/O.ARUMUGHAN, MANAGING TRUSTEE, MAHA GANAPATHY MANDIR TRUST, RESIDING AT 11/392, SREE GOKULAM, KALATHIL VEEDU, CHITTUR ROAD, THIRUVALATHUR AMSOM, KODUMBU, PALAKKAD DISTRICT.** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** **RESPONDENTS/RESPONDENTS/NOT PARTY/COMPLAINANT:** **---------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. V.PAULRAJ, S/O.VEERAPATHIRAN, RESIDING AT 8/148, INDRANI NAGAR, CHUNNAMBUTHARA, PALAKKAD-678 001.** **R1 BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE 30TH DAY OF JULY 2013/8TH SRAVANA, 1935 Crl.Rev.Pet.No. 1409 of 2013 () -------------------------------- AGAINST THE ORDER/JUDGMENT IN CRA 262/2011 of ADDITIONAL DISTRICT COURT (ADHOC), PALAKKAD DATED AGAINST THE ORDER/JUDGMENT IN CMA 289/2010 of J.M.F.C.-I,PALAKKAD DATED REVISION PETITIONER(S)/APPELLANT/ACCUSED: ------------------------------------------------------------------------------- N.BALAN S/O.ARUMUGHAN, MANAGING TRUSTEE MAHA GANAPATHY MANDIR TRUST, RESIDING AT 11/392 SREE GOKULAM, KALATHIL VEEDU, CHITTUR ROAD THIRUVALATHUR AMSOM, KODUMBU, PALAKKAD DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD COMPLAINANT(S)/RESPONDENTS/RESPONDENTS/NOT PARTY/COMPLAINANT: ------------------------------------------------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-686028. 2. V.PAULRAJ S/O.VEERAPATHIRAN, RESIDING AT 8/148, INDRANI NAGAR CHUNNAMBUTHARA, PALAKKAD-678001. R BY PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 1409 of 2013 -----------------------------------------------------Dated this the 30[th] day of July, 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.262/11 on the files of the Additional District & Sessions Judge, Ad hoc-I, Palakkad Division. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.289/10 on the files of the Judicial First Class Magistrate's Court-I, Palakkad. According to the impugned judgment, the Revision Petitioner is sentenced to undergo **Crl.R.P. No. 1409 of 2013** -: 2 :- simple imprisonment for a period of two months. He is further directed to pay a compensation of Rs.2,00,000/- to the complainant under Sec.357(3) of the Cr.P.C. and in default of payment of compensation, he shall undergo simple imprisonment for a further period of two 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/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 **Crl.R.P. No. 1409 of 2013** -: 3 :- is found that the debt due to the 2[nd] respondent was a legally enforceable debt and Ext.P5 cheque was duly 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. 4. Though notice had been served on the complainant/2[nd] respondent, the 2[nd] respondent has not **Crl.R.P. No. 1409 of 2013** -: 4 :- chosen to appear and contest the revision on merits. The revision petitioner is given four months time to pay the compensation. 5. 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 put in great hardship. 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 **Crl.R.P. No. 1409 of 2013** -: 5 :- Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over 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 within four months, I am inclined to grant four 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 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.2,00,000/- to the complainant/2[nd] respondent within a period of four 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 29/11/2013 with sufficient **Crl.R.P. No. 1409 of 2013** -: 6 :- proof to show payment of compensation . iv. In default, the Revision Petitioner 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