High Court of KeralaSingle Judge2015-03-04Petition allowed in part; conviction affirmed; ...

P. Gilbert v. State of Kerala and Nelson D Cruz

Case / Petition Number:Crl.Rev.Pet.No.65 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
Judgment Date: 2015-03-04
Court Decision / Holding: Revision petition allowed in part: conviction under section 138 NI Act is confirmed; substantive sentence reduced from two months’ imprisonment to imprisonment till the rising of the court; stay of execution of sentence and rule to pay compensation remain with a six-month window to pay, and failure will lead to execution for the remaining term; the six-month abeyance is to enable payment and appearance for serving the sentence.
Final Disposition: Petition allowed in part; conviction affirmed; sentence reduced; stay and payment conditions imposed; matter disposed as per order.

Parties to the Case

Appellants / Petitioners

P. Gilbert

Respondents

State of Kerala
Nelson D Cruz

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Syam J Sam

Counsels for Respondents

• Sri K. Subash Chandra Bose
• Public Prosecutor SMT. Seena Ramakishnan

Case Synopsis & Summary

This High Court of Kerala, in a Criminal Revision Petition filed by P. Gilbert, examines the concurrent conviction under section 138 of the Negotiable Instruments Act and the accompanying sentences recorded by the trial court and upheld by the IV Additional Sessions Judge, Kollam. The complainant alleged that Gilbert borrowed Rs 1,80,000 and issued cheques (Exts P1–P2) in discharge of the debt, which were dishonoured for insufficient funds. A statutory notice was issued and a complaint (S.T. No. 138/2010) followed. The trial court convicted Gilbert under section 138 NI Act and sentenced him to two months’ simple imprisonment along with compensation of Rs 1,80,000 under Cr.P.C, with a default clause. The appellate court confirmed these conclusions. In revision, Gilbert contends that there was perverse appreciation of evidence and seeks relief, arguing that the offence under section 138 NI Act is essentially civil in nature and primarily a financial remedy rather than punitive. The High Court, after considering Supreme Court precedents, holds that the pecuniary aspect should be prioritized and that the sentence may be moderated. Relying on Damodar S. Prabhu v. Sayed Babalal H and Kaushalya Devi Massand v. Roopkishore, the court modifies the substantive sentence to imprisonment till rising of the court, while maintaining the compensation and default provisions, and directs six months’ abeyance to enable payment. The petition is allowed in part, with conviction upheld and sentence partly reduced.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 313 Cr.P.C.Section 357 Cr.P.C.

Legal Doctrines & Maxims

Offence under section 138 NI Act is civil in nature.
Pecuniary aspect has priority over punitive aspect in NI Act offences.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner reiterates the contentions raised in the appeal, challenging the sufficiency and approach of evidence, and urging that, since the offence under section 138 NI Act is primarily civil in nature, the court should prefer financial remedy over imprisonment. He contends that if given reasonable time, compensation can be paid, and the penalty should be mitigated; the argument emphasizes paying the amount while seeking leniency in imprisonment.

Contentions of Respondents

The respondents support the conviction and sentence, arguing that the facts and materials on record establish the offence under section 138 NI Act beyond reasonable doubt. They rely on the trial court’s findings and the appellate court’s affirmation, contending that no valid ground exists for interference in revisional jurisdiction.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Damodar S. Prabhu v. Sayed Babalal H	AIR 2010 SC 1907	Positive	Apex Court held that 138 NI Act is civil in nature and aims at payment of amount rather than imprisonment; used by the High Court to justify leniency in sentencing.
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Apex Court emphasized prioritizing the pecuniary aspect over punitive measures in NI Act offences; cited to support sentence modification.

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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 C.T.RAVIKUMAR WEDNESDAY, THE 4TH DAY OF MARCH 2015/13TH PHALGUNA, 1936 Crl.Rev.Pet.No. 65 of 2015 () -----------------------------AGAINST THE JUDGMENT IN CRA 400/2011 of COURT OF ADDL. SESSIONS JUDGE - IV, KOLLAM AGAINST THE JUDGMENT IN ST 138/2010 of J.M.F.C. - III, KOLLAM DATED 24.10.2011 ## REVISION PETITIONER(S)/APPELLANT/ACCUSED: ------------------------------------------------------ P. GILBERT, AGED 38 YEARS, S/O.PIUS PROPRIETOR LOUIS COMPANY, SUKRUTHAM LEKSHMINADA KOLLAM-13. BY ADV. SRI.SYAM J SAM RESPONDENT(S)/COMPLAINANT/STATE: -------------------------------------------- ## 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ## 2. NELSON DCRUZ SNEHALAYAM, SOUMYATHA NAGAR PUNNATHALA SOUTH, THANGASSERI P.O., KOLLAM. R2 BY ADV. SRI.K.SUBASH CHANDRA BOSE R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04-03-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T. RAVIKUMAR, J. ========================== CRL.R.P. No.65 OF 2015 ==========================** Dated this the 4[th ] day of March, 2015 ## **ORDER** This revision petition is directed against the conviction and sentence concurrently entered against the revision petitioner under section 138 of the Negotiable Instruments Act. The allegation of the second respondent/complainant is that the petitioner borrowed an amount of `1,80,000/- from him and in discharge of the said legally enforceable debt, he issued Exts.P1 and P2 cheques. But, on presentation for encashment, the said cheques were dishonoured due to insufficiency of funds in the account of the revision petitioner. Thereupon, the complainant issued notice intimating the revision petitioner of the dishonour of the cheques and calling upon him to pay the amount due. It is the failure on the part of the revision petitioner to effect payment within the statutorily prescribed period that constrained the complainant to file the complaint which was taken on **Crl.R.P.65/15** 2 file and numbered as S.T.No.138 of 2010 on the files of the Court of Judicial First Class Magistrate-III, Kollam. On due process, the revision petitioner appeared before the court and the particulars of the charge were read over and explained to him and he pleaded not guilty. The complainant got himself examined as PW1 and got marked Exts.P1 to P12 to bring home the charge against the revision petitioner. On the closure of the evidence of the complainant, the revision petitioner herein was examined under Section 313 Cr.P.C. and he denied all the incriminating circumstances put to him. However, no defence evidence was adduced. On a careful evaluation of the evidence, the trial court found that the complainant has succeeded in establishing the fact that the petitioner herein has committed the offence under Section 138 of the Negotiable Instruments Act. Consequently, he was convicted thereunder and sentenced to undergo simple imprisonment for a period of two months and to pay a compensation of `1,80,000/- under section 357 Cr.P.C and in default of payment of compensation to undergo simple imprisonment for a **Crl.R.P.65/15** 3 further period of one month. The petitioner unsuccessfully attempted an appeal as Crl.A.No.400 of 2011 before the Court of IV Additional Sessions Judge, Kollam. Various contentions were raised against the judgment of the trial court. However, the learned IV Additional Sessions Judge found that the conclusions and findings of the trial court are perfectly in tune with the evidence on record. Accordingly, the conviction and sentence were confirmed by the appellate court. This revision petition has been filed in the said circumstances. 2. I have heard the learned counsel for the petitioner, the learned counsel for the second respondent and the learned Public Prosecutor. Virtually, the revision petitioner reiterated the contentions raised by him in the appeal. Obviously, the courts below, on appreciation of evidence on record, convicted the petitioner concurrently for the offence under section 138, NI Act. In such circumstances, in order to invite interference in exercise of the revisional jurisdiction, the petitioner has to make out a case of utter, **Crl.R.P.65/15** 4 perverse appreciation of evidence by the courts below or that the conclusions and findings are totally against the weight of evidence. I have no hesitation to hold that the petitioner has failed to make out any such case warranting interference by this Court in exercise of the revisional jurisdiction. No error in law has also been brought out to my notice. In the result, conviction of the petitioner under section 138 NI Act is hereby confirmed. 3. Now, I will consider the question whether the sentence imposed on the revision petitioner for the conviction invites interference. In the light of the decisions of the Hon'ble Apex Court in **Damodar S.Prabhu v. Sayed Babalal H [AIR 2010 SC 1907]** and **Kaushalya Devi Massand v. Roopkishore [AIR 2011 SC 2566]** the pecuniary aspect has to be given priority over the punitive aspect in a case of dishonour of cheque. Evidently, the total amount covered by Exts.P1 and P2 cheques is `1,80,000/- and the said cheques are dated 27.02.2008. The Hon'ble Apex Court held that the offence under **Crl.R.P.65/15** 5 section 138 NI Act is basically of civil nature and that the intention of the legislature in enacting the same is to make the drawer of the cheque to pay the amount of fine, by giving an opportunity and not to sent him to jail. In the said circumstances and taking into account the submission made by the learned counsel for the revision petitioner that the revision petitioner would pay the amount of compensation in case some reasonable time is granted, I am of the view that the sentence imposed on the petitioner requires modification. In such circumstances, while confirming the conviction, the sentence imposed on the revision petitioner for the conviction under section 138, NI Act is modified and the substantive sentence to undergo simple imprisonment for two months is reduced to imprisonment till the rising of the court. However, the direction to pay compensation and default clause is maintained. The learned Magistrate is directed to keep in abeyance the execution of sentence as also initiation of steps to recover the amount of compensation, for a period of six months to enable the revision petitioner to pay the amount of compensation and **Crl.R.P.65/15** 6 to appear before the trial court to suffer the sentence of imprisonment within the stipulated time. In case of failure on the part of the revision petitioner to pay the amount of compensation and to appear before the trial court to suffer the sentence of imprisonment till the rising of the court, within the stipulated time, the learned Magistrate shall take appropriate steps in accordance with law. This revision petition is thus allowed in part and disposed of as above. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **spc/** **Crl.R.P.65/15** 7 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **Crl.R.P.65/15** 8