RadhaKrishnan Nair v. K.P. Suresh and State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 23RD DAY OF OCTOBER 2014/1ST KARTHIKA, 1936** **Crl.Rev.Pet.No. 1299 of 2003 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 599/1999 of SESSIONS COURT, KOZHIKODE.** **AGAINST THE JUDGMENT IN CC 464/1997 of J.M.F.C., VADAKARA.** **REVISION PETITIONER(S):** **------------------------** **RADHAKRISHNAN NAIR, S/O. PANKAJAKSHAN NAIR, 'RADHA VALSAM', CHALAKKARA, MAHE.** **BY ADVS.SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR** **RESPONDENT(S): ---------------** **1. K.P. SURESH, S/O. NARAYANAN, KALARIKANDI HOUSE, NUT STREET, VADAKARA.** **2. STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM, KOCHI-31.** **R1 BY ADV. SRI.LIFFY P. FRANCIS R2 BY PUBLIC PROSECUTOR SRI. C.K. JAYAKUMAR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No.1299 of 2003 -----------------------------------------------------Dated this the 23[rd] day of October, 2014** ## **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.599/1999 on the files of the Sessions Court, Kozhikode. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.464/1997 on the files of the Judicial First Class Magistrate's Court, Vadakara. According to the impugned judgment, the Revision Petitioner is **Crl.R.P. No.1299 of 2003** -: 2 :- sentenced to undergo simple imprisonment for a period of six months and is directed to pay a compensation of `50,000/- to P.W.1/the complainant. 2. The case of the complainant, in brief, is as follows: The revision petitioner/accused owed a sum of `50,000/- to the complainant and for the said liability, he issued a cheque dated 21/4/1997 drawn on Canara Bank at its Mahe, Palloor Branch. When the cheque was presented in the bank, it was returned unpaid stating that there was no sufficient fund in the account of the accused and that the payment was stopped by the drawer. So, he sent a notice to the accused intimating the fact of dishonour of the cheque and demanding the amount covered by it. Though the accused accepted the notice, he has not paid the cheque amount. But he sent a reply notice raising false contentions. The accused has, therefore, committed an offence punishable under Sec.138 of the N.I. Act. 3. The revision petitioner/accused admitted that **Crl.R.P. No.1299 of 2003** -: 3 :- Ext.P1 cheque is one which is issued in his account maintained in the Bank and the signature shown in the said cheque is also his signature. But his case is that Ext.P1 is one of the cheque leaves lost from his possession and that one of his relatives, who had worked in his institution, had taken away the cheque leaves and by making use of that cheque. The prosecution is launched against him with an intention to harass him. To substantive this contention, the accused himself was examined as D.W.1 and proved Exts.D1 to D4. In his oral evidence, the accused himself admitted that knowing about the missing of cheque leaves, he had reported the fact to the Bank and Ext.D1 stop payment memo was sent to the Bank. As rightly pointed out by the appellate court, Ext.D1 does not show the reason for the request made to the Bank to stop the payment, if the cheque was presented. His case is that when he came to know that P.W.1's father Narayanan filed a cheque case against him, he came to know about the loss of the ## **Crl.R.P. No.1299 of 2003** -: 4 :- cheque leaves. But, in cross-examination, he admitted that Ext.D1 was sent to the Bank after the case was filed by the said Narayanan. Even though, he has reported with regard to the loss of his cheque leaves, Ext.D1 stop payment memo does not show that unsigned cheque leaves have been lost from his custody. The accused disputed the signature in Ext.P1 cheque only when he was questioned under Sec.313 of the Cr.P.C. and when he was examined as D.W.1. But when P.W.1 was cross-examined, he has not set up such a case which he has set up in the defence. Thus, the accused has miserably failed to rebut the presumption under Secs.118(a) and 139 of the N.I. Act which stood in favour of the complainant. The above finding is supported by the absence of reply notice denying the liability in spite of the receipt of the said notice which is evidenced by Ext.P5. There is no illegality or impropriety in any of the findings and I do not find any perversity in the appreciation of evidence from which those findings have arrived at. **Crl.R.P. No.1299 of 2003** -: 5 :- 4. At last, the learned counsel for the revision petitioner confined his challenge 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 two months. 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 **Crl.R.P. No.1299 of 2003** -: 6 :- 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. Similarly, the substantive sentence of six months imprisonment imposed on the revision petitioner will stand reduced to simple imprisonment for for one day till rising of the Court. 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. **Crl.R.P. No.1299 of 2003** -: 7 :- ii. The Revision Petitioner shall pay a compensation of `50,000/- (Rupees Fifty thousand only) to the 1[st] respondent/ complainant within a period of two 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 23/12/2014 with sufficient proof to show payment of compensation. iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of two months. The Criminal Revision Petition is disposed of accordingly. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** ## **//true copy//** ## **P.S. to Judge**