High Court of KeralaSingle Judge2013-07-04Disposed of accordingly to modify sentence and ...

S. Thulaseedharan v. Sujan S/o Sugathan and State of Kerala

Case / Petition Number:Crl.R.P. 1370/2013

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-07-04
Court Decision / Holding: The Criminal Revision Petition is disposed of accordingly. The substantive sentence of imprisonment is reduced to one day, till rising of the court. The accused shall pay Rs.1,00,000 to the complainant within five months from today. The accused must appear before the Trial Court to suffer the substantive sentence on or before 5/12/2013 and show proof of payment; in default, he shall undergo four months’ simple imprisonment.
Final Disposition: Disposed of accordingly to modify sentence and payment terms; compensation to be paid within five months with conditions for appearance and default consequences.

Parties to the Case

Appellants / Petitioners

S. Thulaseedharan S/o Kannan, Charuvila Puthen Veedu, Santhipuram Meeyannoor P.O., Adichanaloor Village, Kollam District

Respondents

Sujan S/o Sugathan, Sooraj Nivas, Thazham Middle Chathannoor, Kollam District, PIN 691010
State of Kerala, rep. by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. B. Mohanlal

Counsels for Respondents

• Sri. M. Bose
• Sri. Liju V. Stephen

Case Synopsis & Summary

This Criminal Revision Petition challenges the concurrent conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881, arising from Cr. A. No. 313/2008 before the I Additional Sessions Judge, Kollam, as affirmed by the Munsiff–Magistrate’s Court, Paravur in CC 64/04. The accused issued a cheque in discharge of a legally enforceable debt; the trial courts found the debt due, the cheque duly issued, and the petitioner failed to rebut the presumption under Sections 118(a) and 139 NI Act. The petitioner contends that the sentence is disproportionate and seeks relief on the grounds of civil-like nature of Section 138 offences, arguing for restitution primarily through compensation. The respondents/complainant advocate a reasonable modification rather than a heavy punitive approach. Relying on Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC 2566) and Vijayan v. Baby (2011(4) KLT 355), the High Court emphasizes the civil overtones of the offence and the practical, realistic restitution to be given priority over punishment. The court then modifies the sentence to one day’s simple imprisonment and allows Rs.1,00,000 compensation to be paid within five months, directing the petitioner to appear before the trial court for satisfying payment, with default triggering a four-month imprisonment. The petition is disposed of accordingly.

Provisions of Law Cited

Negotiable Instruments Act, 1881 - Section 138Negotiable Instruments Act, 1881 - Section 118(a)Negotiable Instruments Act, 1881 - Section 139Cr.P.C. - Section 357(3)Cr.P.C. - Section 421Cr.P.C. - Section 431

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel reiterates the earlier contentions and argues that the revision is confined to sentencing. He contends there is no perversity in the trial court’s appreciation of evidence and requests minimization of punishment, highlighting a readiness to pay compensation within five months and seeking relief from immediate imprisonment. He relies on civil-like nature of Section 138 offences and emphasizes practical restitution over punitive measures, citing Kaushalya Devi Massand and Vijayan v. Baby to justify prioritizing compensation and realistic restitution.

Contentions of Respondents

The respondents’ counsel supports modification of the sentence but argues that some modification is warranted, maintaining that the accused should fulfill the compensation obligation while ensuring proportionate punishment. He underscores the complainant’s right to compensation and the need to preserve the dignity of the offence, while not opposing reasonable relief.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Cited to support the view that Section 138 NI Act offences have civil overtones and that compensation suffices to meet ends of justice, guiding the court to prioritize restitution over punitive measures.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to emphasize practical and realistic restitution, reinforcing that compensatory relief should be given priority in 138 NI Act prosecutions.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against S. Thulaseedharan v. Sujan S/o Sugathan and State of Kerala and instantly map out authorities that support, challenge, or govern your position.

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 4TH DAY OF JULY 2013/13TH ASHADHA, 1935 Crl.Rev.Pet.No. 1370 of 2013 () --------------------------------** **AGAINST THE JUDGMENT IN CRA 313/2008 of I ADDL. SESSIONS JUDGE,KOLLAM.** **AGAINST THE JUDGMENT IN CC 64/2004 of J.M.F.C., PARAVOOR.** **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **S.THULASEEDHARAN S/O.KANNAN, CHARUVILA PUTHEN VEEDU, SANTHIPURAM MEEYANNOOR P.O., ADICHANALLOOR VILLAGE KOLLAM DISTRICT.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENTS/COMPLAINANT & STATE:** **1. SUJAN S/O.SUGATHAN, SOORAJ NIVAS, THAZHAM MIDDLE CHATHANNOOR, KOLLAM DISTRICT, PIN 691 010.** **2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.M.BOSE R2 BY PUBLIC PROSECUTORSRI. LIJU V. STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------Crl.R.P. 1370 No. of 2013 -----------------------------------------------------Dated this the 4[th] day of July, 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.313/08 on the files of the I Additional Sessions Judge, Kollam. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.64/04 on the files of the Munsiff-Magistrate's Court, Paravur. According to the impugned judgment, the Revision Petitioner is sentenced to **Crl.R.P. 1370 No. of 2013** -: 2 :- undergo simple imprisonment for four months. He is also ordered to pay a compensation of Rs.1,00,000/- (Rupees one lakh only) to the complainant under Sec.357(3) Cr.P.C. and in default, to release is under Sec.421 read with Sec.431 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 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. **Crl.R.P. 1370 No. of 2013** -: 3 :- 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 reappreciate 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 within **Crl.R.P. 1370 No. of 2013** -: 4 :- five months. 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 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 **Crl.R.P. 1370 No. of 2013** -: 5 :- remedy should be given much priority over punitive aspect. 6. The learned counsel for the 1[st] respondent/ complainant submits that a reasonable modification may be made in the sentence. 7. 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 five months, I am inclined to grant five 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. 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 Rs1,00,000/(Rupees one lakh only) to the 1[st] respondent/ complainant as compensation within a period of five months from today. ## **Crl.R.P. 1370 No. of 2013** -: 6 :- iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 5/12/2013 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of four months. The Criminal Revision Petition is disposed of accordingly. ## **Sd/-** ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge **Crl.R.P. 1370 No. of 2013** -: 7 :-