High Court of KeralaSingle Judge2011-03-09Criminal Revision Petition disposed of; convict...

Oommen Mathew v. Skaria K.S. and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 392 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2011-03-09
Court Decision / Holding: Criminal Revision Petition disposed of. Conviction under Section 138 NI Act confirmed. Sentence modified from imprisonment to one day simple imprisonment (till the rising of the court) and compensation enhanced to Rs. 2,25,000 under Section 357(3) Cr.P.C. to be paid within 45 days. In default, the petitioner to undergo two months’ simple imprisonment. The petitioner should appear on 20 April 2011 to receive the modified sentence and make payment. The order allows payment either directly to the complainant or via remittance to the trial court.
Final Disposition: Criminal Revision Petition disposed of; conviction confirmed; sentence modified and compensation enhanced; payment deadline set; coercive steps available if default occurs.

Parties to the Case

Appellants / Petitioners

OOMMEN MATHEW, S/O.T.P.OOMMEN, THOLOOPARAMBIL (H), THEEPPANY, THIRUVALLA

Respondents

1. SKARIA.K.S., S/O.M.S.SKARIA, KALAPPURACKAL VEEDU, PALLIKKACHIRA POST, PAIPPADU, CHANGANASSERY TALUK
2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

Legal Representation & Advocates

Counsels for Petitioners

• SRI.T.S.JOHN
• SRI.JESTIN MATHEW

Counsels for Respondents

• PUBLIC PROSECUTOR SMT.Rekha C. Nair

Case Synopsis & Summary

This is a criminal revision petition filed by the accused, Oommen Mathew, challenging his conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881. The High Court of Kerala, presided by Justice V.K. Mohanan, sits to determine whether the conviction should be interfered with and whether the sentence should be modified in light of statutory objectives and equitable considerations. The cheque involved was dated 3 February 2006 for Rs. 2,00,000 and was dishonoured, with the trial court and the lower appellate court having held the accused liable. The Supreme Court’s decision in Damodar S. Prabhu v. Sayed Babalal H. (JT 2010(4) SC 457) was cited to emphasize that in cheque-bounce cases, the compensatory remedy should be prioritized over punitive punishment. The court acknowledged the complainant’s loss over the last four years and, while confirming the conviction, decided to temper the sentence. Consequently, the sentence is reduced to one day of simple imprisonment, till the rising of the court, and the compensation is raised to Rs. 2,25,000 under Section 357(3) Cr.P.C., to be paid within 45 days. If not paid, the petitioner would undergo two months additional imprisonment. The order directs payment to the complainant, either directly or via remittance to the trial court, and fixes 20 April 2011 for appearance to receive the modified sentence and payment. The disposition reflects a balance between restitution for the complainant and reasonable relief for the accused.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 357(3) of the Cr.P.C.

Legal Doctrines & Maxims

Compensation-first principle in cheque-bounce cases (priority to compensation over punishment) as articulated in Damodar S. Prabhu v. Sayed Babalal H.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contended that the sentence under Section 138 NI Act is exorbitant and unreasonable. He sought setting aside or reduction of the sentence and requested breathing time to pay the compensation, relying on the Supreme Court precedent cited (Damodar S. Prabhu). The aim was to protect the complainant’s interest while not imposing an unduly harsh penalty.

Contentions of Respondents

The respondents urged that the conviction should stand and that the complainant’s interests must be protected since the amount has remained unpaid for several years; emphasis was on ensuring proper restitution within a reasonable timeframe.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Damodar S. Prabhu v. Sayed Babalal H.	JT 2010(4) SC 457	Positive	Cited to support the principle that the compensatory aspect of the remedy in cheque-dishonour cases should be prioritized over punitive punishment.

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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 V.K.MOHANAN** **WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932** **Crl.Rev.Pet.No. 392 of 2011()** **----------------------------------CRA.239/2009 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA ST.468/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA** **....................** **PETITIONER(S): ACCUSED** **-------------------------------** **OOMMEN MATHEW, S/O.T.P.OOMMEN, THOLOOPARAMBIL (H), THEEPPANY, THIRUVALLA.** **BY ADVS. SRI.T.S.JOHN SRI.JESTIN MATHEW** ## **RESPONDENT(S): RESPONDENT/COMPLAINANT** **-------------------------------------------------------** **1. SKARIA.K.S., S/O.M.S.SKARIA, KALAPPURACKAL VEEDU, PALLIKKACHIRA POST, PAIPPADU, CHANGANASSERY TALUK.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SMT.REKHA C. NAIR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **V.K.MOHANAN, J. --------------------------------------------Crl.R.P.No. 392 of 2011 --------------------------------------------Dated this the 9[th] day of March, 2011** ## **O R D E R** The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. As this Court is not inclined to interfere with the order of conviction, learned counsel for the revision petitioner submitted that the sentence of imprisonment awarded against the revision petitioner is exorbitant and unreasonable and therefore, the same may be set aside and some breathing time may be granted to the revision petitioner to pay the compensation amount. In the light of the facts and circumstances involved in the case, I am of the view that the said submission requires positive consideration. ## **Crl.R.P.No.392 of 2011** ## **:-2-:** 3. In this juncture, it is relevant to note that the cheque in question is dated 3.2.2006 that too for an amount of `.2 lakhs. As per the findings of the trial court as well as the appellate court which are approved by this Court, the amount covered by the cheque in question is due to the complainant. Thus, it can be seen that Two lakhs Rupees is with the revision petitioner for the last four years. The Apex Court, in the decision reported in **Damodar.S.Prabhu** v. **Sayed Babalal.H.** [JT 2010(4) SC 457], held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. Having regard to the facts indicated above and the legal position, I am of the view that the sentence imposed against the revision petitioner requires reconsideration, but at the same time, the interest of the complainant also has to be protected since the amount is due for the last four years. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section ## **Crl.R.P.No.392 of 2011** **:-3-:** 138 of the N.I.Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered against the revision is modified and reduced to one petitioner day simple imprisonment, ie., till the rising of the court. Accordingly, in modification of the order to pay compensation of `.2 lakhs, the revision petitioner is directed to pay a sum of ` **.2,25,000/-** (Rupees Two Lakhs Twenty Five Thousand only) to the complainant as compensation under Section 357(3) of the Cr.P.C. within 45(forty five) days from today and in default, the revision petitioner is directed to undergo simple imprisonment for a period of two months. Accordingly, the revision petitioner is directed to appear before the trial court on **20[th] April,2011** to receive the modified sentence and to pay the compensation amount. It is made clear that the revision petitioner is free to pay the compensation amount fixed by this Court either directly to the complainant or by remitting the same before the trial court whichever subject to the satisfaction of the learned Magistrate. If there is any failure on the ## **Crl.R.P.No.392 of 2011** ## **:-4-:** part of the revision petitioner to receive the sentence and to pay the compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. Coercive steps, if any, pending against the revision **20[th]** . petitioner shall be deferred till **April,2011** **V.K.MOHANAN,** . **Judge** MBS/ **Crl.R.P.No.392 of 2011** **:-5-:** MBS/ As this Court is not inclined to interfere with the order of conviction, learned counsel for the revision petitioner submitted that some breathing time may be granted to revision petitioner to pay the compensation amount. In the light of the facts and circumstances of the case, I am of the view that the said ## **Crl.R.P.No.392 of 2011** ## **:-6-:** submission requires positive consideration. The cheque in question is dated 2.4.2004 that too for an amount of Rs.43,000/-. The trial court though sentenced the revision petitioner to undergo six months simple imprisonment, the appellate court reduced the same to one day simple imprisonment. Having regard to the above facts and circumstances and in the light of the decision reported ........., I am of the view that while granting some time, the compensation amount can be enhanced. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment as modified and fixed by the appellate court, the revision petitioner is directed to pay a sum of RS.60,500/- to the complainant as compensation under Section 357(3) of the CrP.C. within three months from today and in default, the revision petitioner is directed to undergo simple imprisonment for a period of three months. ## **Crl.R.P.No.392 of 2011** ## **:-7-:** Accordingly, the revision petitioner is directed to