High Court of KeralaSingle Judge2013-11-08The Criminal Revision Petition is disposed of a...

O. Muhammed Sahir v. Siby Joseph and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 2205 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-11-08
Court Decision / Holding: The Criminal Revision Petition is disposed of accordingly. The conviction is maintained but the substantive sentence is modified: one day of simple imprisonment; fine of Rs. 2,50,000 to be paid within five months, to be given to the complainant under Cr.P.C. 357(1)(b); the petitioner to appear before the Trial Court to suffer the sentence by 08/04/2014 with proof of payment; default results in three months of further imprisonment.
Final Disposition: The Criminal Revision Petition is disposed of accordingly.

Parties to the Case

Appellants / Petitioners

O. Muhammed Sahir

Respondents

Siby Joseph Pottukalamm
State of Kerala represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri A. Cherian
• Sri R. Rohith
• Sri K. Janardhana Shenoy
• Sri V. N. Rajappan

Counsels for Respondents

• Sri Liju V. Stephen

Case Synopsis & Summary

This is a Criminal Revision Petition under Section 397 Cr.P.C. challenging the concurrent conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881. O. Muhammed Sahir was convicted by the Judicial First Class Magistrate, II, Changanacherry, in ST No. 125 of 2007, and the conviction was affirmed by the Additional District and Sessions Court (Adhoc)-II, Kottayam in Criminal Appeal No. 351 of 2008. The appellate court sentenced him to simple imprisonment for three months and a fine of Rs. 2,50,000, with default imprisonment for one additional month. The petitioner contends that the revisional court should not reappreciate the evidence unless perversity is shown; he also argues that the sentence is harsh and disproportionate given the nature of the offence. The respondents oppose, maintaining that the findings were correctly made and the sentence warranted. The High Court relies on Kaushalya Devi Massand v. Roopkishore to note that Sec. 138 NI Act resembles a civil wrong with a criminal overtone and that compensation can meet justice’s ends, and cites Vijayan v. Baby for the need to make restitution practical. Since the respondent did not contest merits, the court considers the financial hardship and grants five months to pay the compensation, reducing the substantive sentence to one day’s imprisonment. It directs payment of Rs. 2,50,000 to the complainant under Cr.P.C. 357(1)(b). Thus the revision petition is partly allowed, resulting in modified sentence while maintaining conviction.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 118(a) of the NI ActSection 139 of the NI ActSection 357(1) Cr.P.C.Section 357(1)(b) Cr.P.C.

Legal Doctrines & Maxims

Section 138 NI Act is almost civil in nature with a criminal overtone (Kaushalya Devi Massand v. Roopkishore, AIR 2011 SC 2566)
Restitution and compensatory aspects should take priority; practical and realistic restitution should guide the remedy (Vijayan v. Baby, 2011(4) KLT 355)
Re-appreciation of evidence in revisional jurisdiction is not permissible unless perversity is shown (general principle cited by High Courts)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petition challenges the appellate and trial court findings on conviction, arguing there is no perversity in the evidence and that the sentence is harsh and disproportionate. They seek re-appreciation of evidence and a more lenient sentence, emphasizing the rehabilitative and compensatory nature of justice under NI Act Sec. 138.

Contentions of Respondents

Maintain that the concurrent findings of guilt and the sentence are proper, given the statutory presumption in Sec. 118(a) and 139 NI Act, and the nature of the debt and dishonour of the cheque. They oppose altering the conviction.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Court cites this decision to treat Sec. 138 NI Act as civil-like with criminal overtone and to justify compensation as sufficient remedy.
Vijayan v. Baby	2011(4) KLT 355	Positive	Court uses this decision to emphasize practical, realistic restitution and prioritizing compensatory relief.

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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** **FRIDAY, THE 8TH DAY OF NOVEMBER 2013/17TH KARTHIKA, 1935** ## **Crl.Rev.Pet.No. 2205 of 2013 ()** **--------------------------------------** ## **AGAINST THE JUDGMENT IN CRA 351/2008 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOTTAYAM DATED 02-06-2009** **AGAINST THE JUDGMENT IN ST No. 125/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT - II, CHANGANACHERRY DATED 05-05-2008** ## **REVISION PETITIONER/APPELLANT/ACCUSED** **-------------------------------------------------------------------** **O.MUHAMMED SAHIR, S/O.ZABAIR, AGED 43 YEARS, ABDULLA MANZIL, JUBILY ROAD, THALASSERY, KANNUR DISTRICT-670 101.** **BY ADVS.SRI.ASOK M.CHERIAN SRI.R.ROHITH** **SRI.K.JANARDHANA SHENOY SRI.V.N.RAJAPPAN** ## **RESPONDENTS/COMPLAINANTS** **------------------------------------------------------** ## **1. SIBY JOSEPH POTTUKALAM HOUSE, KAKKANTHODU, CHANGANACHERRY.** ## **2. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTORSRI.LIJU V.STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-11-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MJL** ## **Crl.Rev.Pet.No. 2205 of 2013 ()** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE I : A TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY DEPARTMENT OF CARDIOLOGY, LISIE MEDICAL INSTITUTION.** ## **RESPONDENTS' ANEXURES: NIL** **/TRUE COPY/** ## **P A TO JUDGE** **MJL** **K. HARILAL, J. ---------------------Crl.R.P. No.2205 of 2013 -----------------------------Dated this the 8[th] day of November, 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.351 of 2008 on the files of the Additional District and Sessions Judge,(Adhoc)-II, Kottayam. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.125 of 2007 on the files of the Judicial First Class Magistrate's Court-II, Changanacherry. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.2,50,000/-. In default, the Revision Petitioner shall undergo simple **Crl.R.P. No.2205 of 2013 2** imprisonment for a further period of one month. If the fine amount is realised, it will be given to the 1[st] respondent/complainant under Section 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 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 1[st] respondent/complainant 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 **Crl.R.P. No.2205 of 2013 3** 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 reappreciate 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 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 fine within five months. 4. Similarly, the substantive sentence imposed on the revision petitioner is too harsh and excessive. The learned counsel for the revision petitioner prayed for **Crl.R.P. No.2205 of 2013 4** 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. 6. Though notice had been served on the 1[st] respondent/complainant on 29/10/2013, he didn't enter **Crl.R.P. No.2205 of 2013 5** appearance to contest the Revision Petition on merits. 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 five months, I am inclined to grant five months time to pay the compensation. Similarly, substantive sentence of imprisonment for three months will stand 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 fine of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) within a period of five months from today and the same shall be given to the 1[st] respondent /complainant under Section 357(1) (b)Cr.P.C. iii. The Revision Petitioner shall appear before the **Crl.R.P. No.2205 of 2013 6** Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 08/04/2014 with sufficient proof to show payment of fine . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months. The Criminal Revision Petition is disposed of accordingly. Sd/ _**-**_ **K.HARILAL JUDGE** MJL