RAMESH.R. v. RAJESH A. and STATE OF KERALA

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2014-01-24
Court Decision / Holding: The Criminal Revision Petition is disposed of accordingly.
Final Disposition: The Criminal Revision Petition is disposed of accordingly.

Parties to the Case

Appellants / Petitioners

Ramesh R.

Respondents

Rajesh A.
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• V. A. Johnson (Varikkappallil)

Counsels for Respondents

• U. Balagangadharan
• Public Prosecutor SMT. Seena Ramakrishnan

Case Synopsis & Summary

This is a criminal revision petition filed by the accused Ramesh R. challenging the concurrent conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act) in the judgment of the I Additional Sessions Court Palakkad in CrLA No. 525/2011, which affirmed the conviction arising from ST 2328/2009 pending before the Judicial First Class Magistrate’s Court-I, Palakkad. The High Court examines whether the revision is maintainable to reappreciate evidence, and whether the appellate courts correctly upheld that the complainant proved execution and issuance of the cheque and that the presumption under Sections 118(a) and 139 NI Act applies. The accused contends for reappraisal, while the respondents contend that the cheque was issued in discharge of a legally enforceable debt and the time to pay compensation should be reasonable. The Court notes, citing Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby, that NI Act offences are often civil in nature with a criminal overlay and that compensation should be prioritized over punitive measures. Accordingly, the High Court modifies the sentence, grants four months to pay Rs.70,000 as compensation, and reduces the imprisonment to one day till rising of the court, with a further default provision of two months imprisonment if payment is not made. The petition is disposed of accordingly.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Offence under Section 138 NI Act is almost civil wrong with criminal overtone (Kaushalya Devi Massand v. Roopkishore)
Direction to pay compensation should be practical and realistic; compensatory remedy prevails over punitive aspects (Vijayan v. Baby)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision is limited to sentence; there is no perversity in the appellate courts’ findings; the court should reappreciate only if perversity is shown. The petitioner is ready to pay the compensation but seeks time to arrange funds. Citing Kaushalya Devi Massand and Vijayan v. Baby, the applicant argues that the offence under Section 138 NI Act is essentially a civil liability with criminal overtones and that a lenient, practical remedy focusing on compensation should be preferred over imprisonment. The applicant prays for reduction of sentence and for reasonable time to pay the amount; four months time is requested.

Contentions of Respondents

The cheque was issued in 2009 for a debt; the revision should not unsettle the concurrent findings. The State/respondent contends that the petitioner had ample time to settle the debt and that a short extension to pay compensation is reasonable. The court’s remit is to ensure timely payment of compensation and minimal punitive measures consistent with the gravity of the offence, given the long gap since the cheque’s issuance.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Cited to support the view that 138 NI Act offences resemble civil wrongs with criminal overtone and that compensation may meet ends of justice.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to emphasize that the compensation direction should be practical and realistic, prioritizing restitution over punitive aspects.

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** **TUESDAY, THE 21ST DAY OF JANUARY 2014/1ST MAGHA, 1935** **Crl.Rev.Pet.No. 70 of 2014 ()** **------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 525/2011 of I ADDL. SESSIONS COURT,PALAKKAD DATED 31-10-2013** **AGAINST THE JUDGMENT IN ST 2328/2009 of J.M.F.C.-I, PALAKKAD DATED 07-10-2011** **REVISION PETITIONER/ APPELLANT/ ACCUSED:-** **------------------------------------------** **RAMESH.R., AGED 45 YEARS, S/O.RAMANKUTTY, MOOCHIKKAL HOUSE, KUNNATHURMEDU, KADAMKODE, PALAKKAD.** **BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)** **RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT:------------------------------------------------** **1. RAJESH.A.,, AGED 33 YEARS, S/O.APPUNNI, CHEKIDANKAVU HOUSE, KARINGARAPULLY P.O., KADAMKODE, PALAKKAD-678 103.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R1 BY ADV. SRI.U.BALAGANGADHARAN R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No.70 of 2014 -----------------------------------------------------Dated this the 24[th] day of January, 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.525/11 on the files of the Additional Sessions Judge, Palakkad. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T. No.2328/09 on the files of the Judicial First Class Magistrate's Court-I, Palakkad. According to the impugned judgment, the Revision Petitioner is **Crl.R.P. No.70 of 2014** -: 2 :- sentenced to undergo simple imprisonment for one month for the offence punishable under Sec.138 of the N.I. Act. He is further directed to pay a compensation of Rs.70,000/- to the complainant under Sec.357(3) of the Cr.P.C. and in default of payment of compensation, he shall undergo simple imprisonment for two months. 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 reappreciation 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 **Crl.R.P. No.70 of 2014** -: 3 :- 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 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 **Crl.R.P. No.70 of 2014** -: 4 :- 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 four months. 4. The learned counsel for the 1[st] respondent/ complainant submits that the cheque was issued in the year 2009 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. 5. Having regard to the above submissions, the revision petitioner is given four months time to pay the compensation. 4. 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 ## **Crl.R.P. No.70 of 2014** -: 5 :- put 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 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. 6. 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 four **Crl.R.P. No.70 of 2014** -: 6 :- months, I am inclined to grant four months time to pay the compensation. Similarly, the substantive sentence of simple imprisonment for one month is reduced and modified to simple imprisonment 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. ii. The Revision Petitioner shall pay a compensation of Rs.70,000/- (Rupees Seventy thousand only) to the 1[st] respondent/complainant within a period of four months from today under Sec.357(3) 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 23/5/2014 with sufficient proof to show payment of compensation . **Crl.R.P. No.70 of 2014** -: 7 :- 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 # **Crl.R.P. No.70 of 2014** -: 8 :-