High Court of KeralaSingle Judge2014-01-09Revision petition disposed of. The petitioner i...

P.N. Jayakumar v. R.S. Anilkumar and Others

Case / Petition Number:Crl.R.P.No. 8 of 2007

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2014-01-09
Court Decision / Holding: The Criminal Revision Petition is disposed of accordingly. The court agrees to grant six months for payment of Rs. 1,00,000 to the legal heirs (R3–R6), crediting any prior deposit. The petitioner shall undergo simple imprisonment for one day till rising of the court. The petitioner shall appear before the Trial Court to suffer substantive sentence by 8 July 2014 with evidence of payment, failing which three months additional simple imprisonment shall operate. The six-month payment arrangement is framed to prioritize the compensatory aspect over punitive elements, in line with the cited precedents.
Final Disposition: Revision petition disposed of. The petitioner is sentenced to one day simple imprisonment; he must pay Rs. 1,00,000 to the legal heirs (R3–R6) within six months. If any deposit is already made, it shall be credited; the petitioner must appear before the Trial Court by 8 July 2014 to suffer substantive sentence on proof of payment. In default, three months further imprisonment. The order reflects a balance between restorative justice and the offence’s nature, following the cited authorities.

Parties to the Case

Appellants / Petitioners

P.N. Jayakumar

Respondents

R. S. Anilkumar
The State of Kerala, represented by the Public Prosecutor, High Court of Kerala, Ernakulam
Bindhu B., W/o Late R.S. Anilkumar
Athira Anil, D/o Late R.S. Anil Kumar
Adarsh Anil, S/o Late R.S. Anilkumar
Santhabai Amma, M/o Late R.S. Anilkumar

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V. Sethunath

Counsels for Respondents

• Smt. Seena Ramakrishnan (Public Prosecutor)
• Sri. V. Manojkumar (for R3–R6)

Case Synopsis & Summary

This is a criminal revision petition (Crl.R.P. No. 8 of 2007) filed by P.N. Jayakumar challenging the concurrent conviction under Section 138 of the Negotiable Instruments Act, 1881 and the sentence recorded by the Sessions Judge, Pathanamthitta, which was upheld by the Kerala High Court. The applicant contends that the findings of conviction were perverse and sought re-appreciation of evidence, a remedy not available in revision unless perversity is shown. The court notes that the legal heirs of the complainant (R.S. Anil Kumar’s heirs) had established issuance and lending debt evidenced by Ext. P1 cheque, triggering presumptions under Sections 118(a) and 139 NI Act in favor of the complainant. Citing Supreme Court and Kerala High Court precedents, including Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby, the court emphasizes that offences under Section 138 NI Act resemble civil wrongs with criminal overtones and that restitution—via compensation—should be pursued in a practical, realistic manner. In light of these authorities and the applicant’s willingness to pay, the court grants six months to pay Rs. 1,00,000 to the legal heirs (R3–R6), while maintaining a short substantive sentence of one day imprisonment and a contingent three-month default term. The petition is disposed of subject to compliance and credit for any prior deposits.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 357(3) of the Code of Criminal ProcedureSection 118(a) of the NI ActSection 139 of the NI Act

Legal Doctrines & Maxims

Offence under Section 138 NI Act is almost in the nature of civil wrong with criminal overtones; imposition of fine payable as compensation is sufficient to meet the ends of justice (Kaushalya Devi Massand v. Roopkishore)
Restitution in regard to loss due to dishonour of the cheque should be practical and realistic; compensatory aspect should be given priority over punitive aspect (Vijayan v. Baby)
Presumption under NI Act Sections 118(a) and 139 in favor of the holder of the instrument (extant in the trial findings)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel submitted that the concurrent findings were not perversely arrived at and urged for a re-appreciation of evidence, which is not permissible in revisional jurisdiction unless perversity is shown. He argued that the offence under Sec.138 NI Act has strong civil-transactional underpinnings and that the court should adopt a practical approach to compensation. He sought leniency in sentence, offering to pay the compensation within a reasonable period (six months) and conceding that the trial court’s six-month window should be granted so long as payment is made and any deposits already made are credited.

Contentions of Respondents

The respondents’ counsel contended that the cheque was issued in 2004 and that the petitioner has had ample opportunity to satisfy the debt; they urged that the punishment should reflect the seriousness of the offence and not unduly encroach on the prosecution’s interest in timely restitution. They argued against an extended time frame beyond what is reasonable and pressed for timely payment and maintenance of the order’s integrity.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	The decision is cited to support treating Section 138 NI Act offences as largely civil with a criminal overlay and to justify compensation as an adequate remedy.
Vijayan v. Baby	2011(4) KLT 355	Positive	The decision is cited to justify prioritizing compensation/restitution in cases of cheque dishonour and to support a realistic, practical remedy over punitive emphasis.

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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** **THURSDAY, THE 9TH DAY OF JANUARY 2014/19TH POUSHA, 1935 Crl.Rev.Pet.No. 8 of 2007 ( )** **------------------------------** ## **Crl.A 96/2005 of SESSIONS COURT, PATHANAMTHITTA** ## **CC 655/2004 of JUDICIAL FIRST CLASS MAGISTRATE -I, PATHANAMTHITTA** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **--------------------------------------------** ## **P.N.JAYAKUMAR,** **POURNAMI, VAZHAPLAVIL VEEDU, VALLICODE P.O. PATHANAMTHITTA.** ## **BY ADV. SRI.V.SETHUNATH** ## **COMPLAINANT(S)/RESPONDENTS AND STATE:** ## **---------------------------------------** ## **1. R.S.ANILKUMAR, PULARI HOUSE, SREEKRISHNA NAGAR, SREEKARIYAM, THIRUVANANTHAPURAM.** ## **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## *** ADDL.RESPONDETS :** **R3. BINDHU.B., W/o.LATE R.S.ANILKUMAR, AGED 40 YEARS, T.C.9/215, THIRUVATHIRA, PULIYANKODE, CHEMPAZHANTHY.P.O., THIRUVANANTHAPURAM - 695 587. R4. ATHIRA ANIL, D/o.LATE R.S.ANILKUMAR, AGED 11 YEARS, T.C.9/215, THIRUVATHIRA, PULIYANKODE, CHEMPAZHANTHY.P.O., THIRUVANANTHAPURAM - 695 587.** **R5. ADARSH ANIL, S/o.LATE R.S.ANILKUMAR, AGED 4 YEARS, T.C.9/215, THIRUVATHIRA, PULIYANKODE, CHEMPAZHANTHY.P.O., THIRUVANANTHAPURAM - 695 587.** **R6. SANTHABAI AMMA, M/o.LATE R.S.ANILKUMAR, AGED 72 YEARS, T.C.9/215, THIRUVATHIRA, PULIYANKODE, CHEMPAZHANTHY.P.O., THIRUVANANTHAPURAM - 695 587.** **..2..** **Additional R3 to R6 are impleaded as per order dated 09/01/2014 in Crl.M.A.No.149 of 2014.** **R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN. ADDL.R3 TO R6 BY ADV. SRI.V.MANOJ KUMAR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.Rev.Pet.No. 8 of 2007** ## **APPENDIX** ## **PETITIONER’S ANNEXURES : NIL** ## **RESPONDENTS’ ANNEXURES :** **R3 - TRUE COPY OF THE CERTIFICATE NO.K.D.S./G274140/2012, DATED 19/02/2013 OF THE TAHASILDAR, TALUK OFFICE, THIRUVANANTHAPURAM.** **//True copy//** **P.A to Judge** **stu** ## **K.HARILAL, J.** = = = = = = = = = = = **Crl.R.P.No. 8 of 2007** = = = = = = = = = = = = = = = Dated this the 9[th] day of January, 2014 ## **O R D E R** 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.96/2005 on the files of the Sessions Judge, Pathanamthitta. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.655/2004 on the files of the Judicial First Class Magistrate's Court-I, Pathanamthitta. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one day till rising of the court and to pay a compensation of ₹ 1,00,000/- to the complainant under Sec.357(3) of the Code of Criminal Procedure. In default, to undergo simple Crl.R.P.No. 8 of 2007 2 imprisonment for three months more. 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 legal heirs of 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 legal heirs of the 1[st] respondent. So also, it is found that the debt due to the legal heirs of 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 Crl.R.P.No. 8 of 2007 3 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 compensation within six months. The learned counsel for the respondents submits that the cheque was issued in the year 2004 and the revision petitioner had already availed of sufficient time to pay the cheque amount. So, a short time alone can be given to pay the compensation. 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 Crl.R.P.No. 8 of 2007 4 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. 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 a compensation of Rs. 1,00,000/- (Rupees One lakh only) to the additional Crl.R.P.No. 8 of 2007 5 respondents 3 to 6, who are the legal heirs of the deceased complainant within a period of six months from today. If the revision petitioner had already deposited any amount before the trial court in compliance with the interim order of this Court, the same shall be given credit to, and the balance alone needs to be paid and in that case, the additional respondents 3 to 6 are allowed to withdraw such deposit, if any. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 8[th] July, 2014 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months. The Criminal Revision Petition is disposed of accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge