High Court of KeralaSingle Judge2013-09-06Revision petition disposed of with modified sen...

P.A. ABDULLAKUTTY v. PALLIKKARAYIL ABOOBACKER AND OTHERS

Case / Petition Number:Crl.Rev.Pet.No.1337 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-09-06
Court Decision / Holding: Criminal Revision Petition disposed of: conviction upheld; sentence modified to one day simple imprisonment till rising of the court and compensation of Rs. 3,70,000 to be paid within six months; if payment not completed, further simple imprisonment of three months applies; applicant to appear before Trial Court by 03/03/2014 to suffer substantive sentence with proof of payment; any prior deposits credited toward the total compensation.
Final Disposition: Revision petition disposed of with modified sentence and payment terms as stated above, directing payment of compensation within six months and a short term imprisonment in lieu of default, with appearance for final sentencing on a specified date, and credit for any existing deposits.

Parties to the Case

Appellants / Petitioners

P.A. Abdulllakutty

Respondents

Pallikkarayil Aboobacker
State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Fasalu Rahiman
Soudha Pallikkararyil
Saheetha Pallikkarayil
Mohammed Shajith P.A.

Legal Representation & Advocates

Counsels for Petitioners

• Sri Dinesh Mathew J. Muricken

Counsels for Respondents

• Sri P. Ramachandran
• Sri Liju V. Stephen (Public Prosecutor)

Case Synopsis & Summary

This is a Criminal Revision Petition filed by P.A. Abdulllakutty challenging the concurrent findings of conviction under Section 138 of the Negotiable Instruments Act, 1881 and the sentence imposed by the Sessions Court, Thrissur, in Cr. A. No. 491/2010, which arose from a case against him in C.C. No. 513/2008 before the Judicial First Class Magistrate, Kunnamkulam. The Sessions Court convicted the petitioner for dishonor of cheque and directed him to pay compensation of Rs. 3,70,000 to the complainant under CrPC 357(3) and to undergo imprisonment till rising of the court. The petitioner contends that revisional jurisdiction does not permit re-appreciation of evidence unless perversity is shown; he also challenges the severity of the sentence. The respondents rely on standard presumptions under NI Act sections 118(a) and 139 in favour of the complainant and argue the debt was legally enforceable, with the cheque issued in discharge of that debt. The court cites Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby to emphasize that NI Act offences resemble civil wrongs with a criminal overlay and that compensation should be prioritized and made practical. Accordingly, the court grants six months to pay compensation, imposes one day imprisonment, and lays out conditions for payment and appearance, disposing of the revision petition on these terms.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 357(3) Cr.P.C.Sections 118(a) and 139 of the Negotiable Instruments Act, 1881

Legal Doctrines & Maxims

Offence under Section 138 of the Negotiable Instruments Act is almost in the nature of civil wrong with a criminal overtone; imposition of fine payable as compensation is sufficient to meet the ends of justice.
In prosecutions under Section 138 NI Act, the compensatory aspect of remedy should be given priority over the punitive aspect; restitution/restoration is emphasized.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the challenged conviction and the sentence are by way of appeal, and seeking re-appreciation of evidence is impermissible in revision unless perversity is shown. He submits that the court should not reweigh the evidence and requests leniency in sentencing, citing difficulties in paying the compensation within a short period and proposing six months to deposit the amount.

Contentions of Respondents

The respondents rely on the concurrent findings that the cheque was issued in discharge of a legally enforceable debt, with presumption under Sections 118(a) and 139 NI Act in favor of the complainant. They emphasize the gravity of the offence and urge the court to uphold the conviction and the order of compensation, arguing the statutory framework intends to safeguard the complainant’s remedy while ensuring justice is served.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	The Supreme Court held that the offence under Section 138 NI Act is akin to a civil wrong with a criminal overtone, and compensation can meet ends of justice, guiding the present court to favor compensation-focused relief.
Vijayan v. Baby	2011(4) KLT 355	Positive	The Supreme Court held that restitution in regard to loss due to cheque dishonor should be practical and realistic, supporting the compensation-oriented remedy 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** **FRIDAY, THE 6TH DAY OF SEPTEMBER 2013/15TH BHADRA, 1935** ## **Crl.Rev.Pet.No. 1337 of 2012** **--------------------------------** **AGAINST THE ORDER/JUDGMENT IN CRL.APPEAL NO. 491/2010 OF SESSIONS COURT,THRISSUR DATED 10-02-2012** **......** **AGAINST THE ORDER/JUDGMENT IN CC NO.513/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,KUNNAMKULAM DATED 20-07-2010** **......** ## **REVISION PETITIONER(S):APPELLANT/ACCUSED:** **---------------------------------------------------------------------------** ## **P.A.ABDULLAKUTTY,** **S/O.ABOOBACKER HAJI, PEEDIYAKKAL VALAPPIL HOUSE, CHIYANNUR, NEAR DARAN SALAM ENGLISH SCHOOL, KAKOOR.** **BY ADV. SRI.DINESH MATHEW J.MURICKEN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT(S):** **-----------------------------------------------------------------------------** **1. PALLIKKARAYIL ABOOBACKER, S/O.THEKKAN THIRUTHUMEL AVU, PUNNAYURKULAM DESOM, CHEMMANNUR AMSOM, CHAVAKKAD TALUK PIN-680 517.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ***ADDL.R3 TO R7 IMPLEADED:** - **R3. BEEPATHUKUTTY ABOOBACKER, W/O.PALLIKKARAYIL ABOOBACKER, RESIDING AT PALLIKKARAYIL HOUSE, CHAMMANNOOR PO, PUNNAYOORKULAM, THRISSUR DISTRICT - 679 561.** **..2/-** **Kss** **..2...** ## **Crl.R.P.No.1337/2012** - **R4. FASALU RAHIMAN, AGED 43 YEARS, S/O.PALLIKKARAYIL ABOOBACKER, RESIDING AT PALLIKKARAYIL HOUSE, CHAMMANNOOR PO, PUNNAYOORKULAM, THRISSUR DISTRICT - 679 561.** - **R5. SOUDHA PALLIKKARAYIL, AGED 40 YEARS, D/O.PALLIKKARAYIL ABOOBACKER, RESIDING AT PALLIKKARAYIL HOUSE, CHAMMANNOOR PO, PUNNAYOORKULAM, THRISSUR DISTRICT - 679 561.** - **R6. SAHEETHA PALLIKKARAYIL, AGED 38 YEARS, D/O.PALLIKKARAYIL ABOOBACKER, RESIDING AT MANGUZHIYIL HOUSE, VENMENAD, PAVARATTY PO, THRISSUR DISTRICT.** - **R7. MOHAMMED SHAJITH P.A., AGED 36 YEARS, S/O.PALLIKKARAYIL ABOOBACKER, RESIDING AT PALLIKKARAYIL HOUSE, CHAMMANNOOR PO, PUNNAYOORKULAM, THRISSUR DISTRICT - 679 561.** - **(*ADDL.R3 TO R7 ARE IMPLEADED AS PER ORDER DTD. 27/08/2013 IN CRL.M.A.NO.6192/2013 IN CRL.R.P.NO.1337/2012)** **R1,R3 TO R7 BY ADV. SRI.P.RAMACHANDRAN R2 BY PUBLIC PROSECUTOR SRI.LIJU V.STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **K. HARILAL, J.** **------------------** **Crl.R.P. No. 1337 of 2012 -------------------------------Dated this the 6[th] day of September, 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.491 of 2010 on the files of the Sessions Judge, Thrissur. The above appeal was filed challenging the judgment finding the Revision Petitioner guilty of the said offence, passed in C.C.No.513 of 2008 on the files of the Judicial First Class Magistrate's Court, Kunnamkulam. According to the impugned judgment, the Revision Petitioner is sentenced to undergo imprisonment till rising of the court and directed to pay a sum of Rs.3,70,000/- to the complainant /1[st] respondent as compensation under Section 357(3) of Cr.P.C. And in default he shall undergo simple imprisonment for three months. 2. The learned counsel for the Revision Petitioner Crl.R.P. No. 1337 of 2012 2 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/ 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 1st respondent. So also, it is found that the debt due to the 1st respondent was a legally enforceable debt and Ext.P.1 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- Crl.R.P. No. 1337 of 2012 3 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 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 compensation within six months. 4. 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 Crl.R.P. No. 1337 of 2012 4 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. 5. 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 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 Rs.3,70,000/(Rupees Three Lakhs Seventy Thousand only) to the complainant/1[st] respondent as compensation within a period of six 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 03/03/2014 Crl.R.P. No. 1337 of 2012 5 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months. v. If the Revision Petitioner had deposited any amount towards compensation, the same shall be credited towards the compensation amount, the balance alone needs to be paid and the complainant is allowed to withdraw such deposit if any. The Criminal Revision Petition is disposed of accordingly. Sd/ _**-**_ **K.HARILAL JUDGE** MJL