High Court of KeralaSingle Judge2013-10-30Disposed of accordingly

PIOUS GEORGE v. Ravikumar and State of Kerala

Case / Petition Number:Crl.R.P. No. 2113 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-10-30
Court Decision / Holding: The Criminal Revision Petition is disposed of accordingly. The conviction is upheld; the substantive sentence is reduced to simple imprisonment for one day; the accused is ordered to pay Rs. 2,42,000 as compensation under Sec.357(1) Cr.P.C. within six months; the accused shall appear before the Trial Court by 2/5/2014 with proof of payment; in default, the accused shall undergo simple imprisonment for three months. Six months’ time to pay compensation is granted.
Final Disposition: Disposed of accordingly

Parties to the Case

Appellants / Petitioners

Pious George

Respondents

Ravikumar
State of Kerala, represented by the Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Jaison Joseph

Counsels for Respondents

• Public Prosecutor, Liju V. Stephen

Case Synopsis & Summary

This is a Criminal Revision Petition under Cr.R.P. No. 2113 of 2013 challenging the concurrent conviction under Section 138 of the Negotiable Instruments Act, 1881, and the corresponding sentence. The petitioner, Pious George, was convicted by the Judicial First Class Magistrate’s Court-II, N. Paravur in ST No. 224/2010, which was upheld on appeal by the Additional District & Sessions Judge, N. Paravur in Cr. Appeal No. 304/11, leading to simple imprisonment for one year and a fine of Rs. 2,42,000 with a default provision. The High Court, presided by Justice K. Harilal, refused to re-appreciate the entire evidence, finding no perversity in the lower courts’ assessment and thus confirmed the conviction. However, noting jurisprudence that the offence under Section 138 NI Act possesses a civil-culpable character and that compensation can meet the ends of justice, the court cited Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC 2566) and Vijayan v. Baby (2011(4) KLT 355) to advocate prioritizing restitution over punitive measures where feasible. Consequently, the court granted six months to pay compensation and reduced the substantive sentence to simple imprisonment for one day. It ordered Rs. 2,42,000 as compensation under Sec.357(1) Cr.P.C. within six months, with a condition to appear before the Trial Court by 2/5/2014 and a default provision of three months imprisonment. The petition was disposed of accordingly, with 1st respondent absent in this revision on merits.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 118(a) and 139 of the Negotiable Instruments Act, 1881Section 357(1) of the Code of Criminal Procedure (Cr.P.C.)

Legal Doctrines & Maxims

Offence under Section 138 NI Act is almost civil in nature with a criminal overtone (doctrine cited from Kaushalya Devi Massand v. Roopkishore).
Compensatory aspect of remedy should be given priority over punitive aspects in NI Act prosecutions (doctrine cited from Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby).
Restitution/restitutional remedy should be practical and realistic (as reflected in Vijayan v. Baby).

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contended that the revisional court should not re-appreciate the evidence in the absence of perverse findings; the lower courts’ findings on execution and issuance of the cheque should stand; he urged that the offence under Sec. 138 NI Act has a civil character and the remedy should focus on compensation rather than punitive imprisonment; he expressed willingness to pay compensation within six months and sought relief from a harsh sentence; the revision court should ensure proportionality and practicality in sentencing.

Contentions of Respondents

The respondents argued that the conviction should not be disturbed by the revisional court; however, the 1st respondent did not contest merits in person; the legal reasoning cited emphasized upholding the conviction and that compensatory relief could be appropriate; the court was urged to consider the decisions cited to justify a balance between restitution and punishment.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	The Supreme Court decision supports treating NI Act offences with emphasis on compensatory restitution rather than punitive punishment.
Vijayan v. Baby	2011(4) KLT 355	Positive	Held that compensation by restitution should be practical and realistic, aligning with a rehabilitative approach 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** **WEDNESDAY, THE 30TH DAY OF OCTOBER 2013/8TH KARTHIKA, 1935** **Crl.Rev.Pet.No. 2113 of 2013 ()** **--------------------------------** **AGAINST THE JUDGMENT IN CRA 304/2011 of ADDL.D.C. & SESSIONS COURT, N.PARAVUR DATED 08-02-2013** **AGAINST THE JUDGMENT IN ST 224/2010 of J.M.F.C. - II, N. PARAVUR DATED 26-04-2011** **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **PIOUS GEORGE, AGED 43 YEARS, S/O.GEORGE, POOKKAKARAN VEEDU, ERUMATHALA KARA, ERUMATHALA P O, ALUVA.** **BY ADV. SRI.JAISON JOSEPH** ## **RESPONDENTS/COMPLAINANT(S)/STATE:** **---------------------------------** **1. RAVIKUMAR, S/O.KUMARAN, KANAKKANMATTIL VEEDU, (CHINJU NIVAS)KIZHAKKEPRAM KARA, KOTTUVALLY, NORTH PARAVUR.** **2. STATE OF KERALA, REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI.LIJU V. STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------Crl.R.P. No. 2113 of 2013 -----------------------------------------------------Dated this the 30[th] day of October, 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.304/11 on the files of the Additional District & Sessions Judge, N. Paravur. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T. No.224/10 on the files of the Judicial First Class Magistrate's Court-II, N. Paravur. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for **Crl.R.P. No. 2113 of 2013** -: 2 :- one year and is directed to pay a fine of Rs.2,42,000/-. In default of payment of fine, the accused shall undergo simple imprisonment for three months more. If the fine amount is realised, the whole amount shall be given to the complainant as compensation under Sec.357(1) of the 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 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 1[st] respondent. So also, it **Crl.R.P. No. 2113 of 2013** -: 3 :- is found that the debt due to the 1[st] respondent was a legally enforceable debt and Ext.P1 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 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 six months. 4. Though notice had been served on the 1[st] respondent/complainant, he did not enter appearance to contest this revision petition on merits. **Crl.R.P. No. 2113 of 2013** -: 4 :- 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 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 **Crl.R.P. No. 2113 of 2013** -: 5 :- 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. Similarly, the substantive sentence of imprisonment is reduced and modified to simple imprisonment for one day till rising of the court. The sentence imposed on the revision petitioner will stand modified as follows: i. The Revision Petitioner shall undergo simple imprisonment for one day till rising of the court. ii. The Revision Petitioner shall pay a fine Rs.2,42,000/(Rupees two lakhs and forty two thousand only) within a period of six months from today and the same shall be given to the complainant/1[st] respondent as compensation under Sec.357(1) of the Cr.P.C. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 2/5/2014 with sufficient proof to show payment of compensation . **Crl.R.P. No. 2113 of 2013** -: 6 :- 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)** ## **Nan/** //true copy// P.S. to Judge **Crl.R.P. No. 2113 of 2013** -: 7 :-