High Court of KeralaSingle Judge2013-06-28Revision Petition disposed of; partial relief g...

P.V. Hariharan v. State of Kerala and Reliantech

Case / Petition Number:Crl.Rev.Pet.No.803 of 2003

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-06-28
Court Decision / Holding: Revision Petition disposed of; the court, considering the cited authorities, allowed respite by directing payment of Rs.41,000 as compensation and Rs.43,000 as fine within three months; in default, simple imprisonment for one month. The court also inadvertently notes deletions of certain earlier sentences but the operative effect remains the payment directions with default consequence.
Final Disposition: Revision Petition disposed of; partial relief granted with directions to pay compensation within three months and the balance fine within the same period; default results in one month imprisonment; the petition is disposed accordingly.

Parties to the Case

Appellants / Petitioners

P.V. Hariharan

Respondents

State of Kerala represented by Public Prosecutor, Ernakulam
M/S Reliantech, Kochi represented by its Managing Partner, Sunoj S/o Anandam

Legal Representation & Advocates

Counsels for Petitioners

• A. T. Anilkumar, Advocate

Counsels for Respondents

• Public Prosecutor SMT. Seena Ramakrishnan

Case Synopsis & Summary

This Kerala High Court criminal revision petition arises from concurrent convictions under Section 138 of the Negotiable Instruments Act, 1881, in the trial Court (C.C. No. 254/1998) and the associated appeal (Criminal Appeal No. 721/2001). The Revision Petitioner, P. V. Hariharan, challenges the sentencing order that imposed a fine of Rs. 43,000, of which Rs. 41,000 was directed to be paid to the complainant as compensation, and provided for a default simple imprisonment of one month. The learned counsel for the petitioner contends that the revisional court should not re-appreciate evidence, unless perversity is shown, and urges leniency on the grounds that the offence under Section 138 NI Act has quasi-civil undertones and restitution is a more appropriate remedy. The State and the complainant (Reliantech) support the convictions and the statutory presumptions under Sections 118(a) and 139 NI Act, arguing that the offender had not rebutted the presumption and that the debt was legally enforceable. The High Court cites Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby to underscore the civil nature of the offence and the necessity of practical restitution. In light of these authorities and the petitioner’s willingness to pay within three months, the court modifies the outcome: the petitioner is directed to pay Rs.41,000 as compensation within three months, with the Rs.43,000 fine to be paid within the same period, and, in default, to undergo one month of simple imprisonment; the revision petition is disposed of accordingly.

Provisions of Law Cited

Negotiable Instruments Act, 1881, Sec. 138Sections 118(a) and 139 of the NI ActCr.P.C. Sec. 357(1)(b)

Legal Doctrines & Maxims

Offence under Sec. 138 NI Act is quasi-civil with criminal overtones; compensation can meet ends of justice
Restitution/restoration principle should be practical and realistic in NI Act prosecutions

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner urged that the evidence need not be re-evaluated in revisional jurisdiction unless perversity is shown; sought leniency on the basis that Section 138 NI Act offences resemble civil wrongs with a criminal flavour and that compensation/restoration should be given priority. The applicant emphasized willingness to pay compensation within three months and argued that harsh imprisonment would cause hardship to the family.

Contentions of Respondents

The State contended that the conviction and sentence were proper and that no perversity in the appreciation of evidence warranted interference; reliance on the presumption under Sections 118(a) and 139 NI Act to sustain enforceable debt; urged maintaining demonstrable separation between civil remedy and criminal penalties; emphasized the need for deterrence and proper restitution.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Used to support the view that the offence under Section 138 NI Act has quasi-civil overtones and that compensation can satisfy justice.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to reinforce that restitution should be practical and realistic 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 28TH DAY OF JUNE 2013/7TH ASHADHA, 193** **Crl.Rev.Pet.No. 803 of 2003 ( )** **------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.721/2001 of ADDL. DISTRICT COURT (ADHOC), ERNAKULAM DATED 05-02-2003.** **AGAINST THE JUDGMENT IN CC 254/1998 of ADDL.C.J.M.(E&O), ERNAKULAM, DATED 22-09-2001.** **REVISION PETITIONER/APPELLANT/ACCUSED:-** **-------------------------------------** **P.V.HARIHARAN, PUTHENCHIRAYIL HOUSE, THIRUVANIYOOR P.O., ERNAKULAM.** **BY ADV. SRI.A.T.ANILKUMAR** ## **RESPONDENTS/STATE & COMPLAINANT:-** **-------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, ERNAKULAM.** **2. M/S.RELIENTECH, 108, JAWAHAR NAGAR, KOCHI : 20, REPRESENTED BY ITS MANAGING PARTNER, SUNOJ, S/O.ANANDAN.** **R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-06-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** = = = = = = = = = = = = Crl.R.P.No.803 of 2003. = = = = = = = = = = = = Dated this the 28[th] June, 2013 ## **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.721/2001 on the files of the Additional Sessions Judge (Adhoc-I), Ernakulam. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.254/1998 on the files of the Additional Chief Judicial Magistrate's Court, (Economic Offences), Ernakulam. According to the impugned judgment, the Revision Petitioner is sentenced to pay a fine of Rs.43,000/- and if the same is realised Rs.41,000/- to be paid to the 2 ## **Crl.RP.No.803/2003.** complainant/second respondent and in default to undergo simple imprisonment for one month. 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/second 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 second respondent. So also, it is found that the debt due to the second respondent was a legally enforceable debt and Ext.P1 cheque was duly **Crl.RP.No.803/2003.** 3 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 at. 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 learned counsel for the Revision Petitioner submits that 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/fine within three months. 4. Similarly, the substantive sentence imposed on the **Crl.RP.No.803/2003.** 4 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 be put in great hardship. 5. 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 v. 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. 6. Having regard to the nature and gravity of the 5 ## **Crl.RP.No.803/2003.** offence, in the light of the decisions quoted above and submission made at the Bar, expressing willingness to pay the compensation within three months, I am inclined to grant three months time to pay the compensation. Similarly, the substantive sentence of imprisonment is reduced and modified to simple imprisonment for a period of three months. 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 fine of Rs.43,000/- (Rupees forty three thousand only) within a period of three months from today and out of which Rs.41,000/- shall be paid to the complainant/second respondent as compensation under Section 357(1(b) of the Cr.PC. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment **Crl.RP.No.803/2003.** 6 as ordered above on or before 27.9.2013 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of one month. The Criminal Revision Petition is disposed of accordingly. **Sd/-** **K. HARILAL, (JUDGE)** ## **Kvs/-** The following deletions are made in paragraph 6 of the final order dated 28.6.2013 in Crl.R.P.No.803/2003, vide order dated 23.08.2013 in Crl.M.A.No.6007/2013 in Crl.R.P.No.803/2003. The penultimate sentence of paragraph 6, which reads as follows is deleted: “Similarly, the substantive sentence of imprisonment is reduced and modified to simple imprisonment for a period of three months”. (contd......) **Crl.RP.No.803/2003.** 7 Clause (i) to paragraph 6, which reads as follows is deleted: “The Revision Petitioner shall undergo simple imprisonment for one day till rising of the Court”. Clause (iii) to paragraph 6, which reads as follows is deleted: “The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 27.9.2013 with sufficient proof to show payment of compensation”. Sd/- Registrar (Judicial)