Sakkeer Ali v. Radhakrishnan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 1ST DAY OF JANUARY 2014/11TH POUSHA, 1935** **Crl.Rev.Pet.No. 1377 of 2010 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 473/2007 of ADDITIONAL DISTRICT COURT (AD HOC)I, PALAKKAD.** **AGAINST THE JUDGMENT IN ST 4/2005 of J.M.F.C., PATTAMBI.** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **------------------------------------------** **SAKKEER ALI, S/O HYDER HAJI, KOTTAPPURATHU VEEDU, NJHANGATTIRI DESOM, THRITHALA AMSOM, OTTAPALAM TALUK.** **BY ADV. SRI.P.K.MOHANAN(PALAKKAD)** **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **--------------------------------------------** **1. RADHAKRISHNAN, S/O RAVUNNI NAIR, 'AISWARYA', PERUMUDIYUR DESOM, MUTHUTHALA AMSOM, OTTAPALAM TALUK.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.P.VENUGOPAL (1086/92) R2 BY PUBLIC PROSECUTOR ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No.1377 of 2010 -----------------------------------------------------Dated this the 1[st] 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.473/2007 on the files of the Additional Sessions Judge, (Adhoc Court No.I), 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.4 of 2005 on the files of the Judicial First Class Magistrate's Court, Pattambi. 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 ₹ 3,75,000/to the complainant/1 st respondent. In default, to undergo simple imprisonment for Crl.R.P. No.1377 of 2010 2 two months. Appellant has given two months time to pay the amount of compensation from the date of judgment. 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/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 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 Crl.R.P. No.1377 of 2010 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. Therefore, I am not inclined to re-appreciate entire evidence once again and I confirm the concurrent findings of conviction. 3. It is the case of the complainant that the accused has issued a cheque dated 17/11/2004 drawn in favour of the complainant for an amount of 3,75,000/- in discharge₹ of a liability. When the complainant presented the cheque for collection, it was returned dishonoured for insufficiency of funds in the account of the accused. Thereafter, the complainant issued a registered lawyer's notice to the accused. Though the accused received the notice, he neither discharged his liability; nor sent any reply. Thus, the accused has committed the offence punishable under Sec.138 of the N.I. Act. 4. To prove the execution and issuance of the cheque, Crl.R.P. No.1377 of 2010 4 the complainant was examined as P.W.1 and Exts.P1 to P6 were marked. No evidence, either oral or documentary, was produced by the accused in defence; but he pleaded not guilty. The main thrust of the argument advanced by the learned counsel for the revision petitioner is that the complainant has not averred the details of the original transaction in the complaint. According to him, the cheque was issued as a security in connection with a furniture kuri transaction. Going by the impugned judgment, it could be seen that though the details of the original transaction were not specifically averred in the complaint, when the complainant was cross-examined by the accused, he specifically deposed the entire particulars of the transaction under which the amount was due to him. It is the specific case of the complainant, in evidence, that the complainant was a tenant under the accused and when the tenancy was terminated, an amount of 3,75,000/- was due to the₹ complainant as the amount liable to be returned as security Crl.R.P. No.1377 of 2010 5 deposit at the termination of the tenancy. Though specific details were not averred in the complaint also, it is stated that the cheque was issued in discharge of a liability. In the notice also, it is specifically stated that the cheque was issued in discharge of a liability due to him. Though the particulars of the transactions were not specifically averred in the complaint, the particulars were seen supplemented unambiguously when he was cross-examined in evidence. Therefore, going by the evidence available on record, it could be seen that the complainant has succeeded to satisfy the court regarding the amount due to him under the tenancy. The above view is supported by **Devan v. Krishna Menon** [2010(2) KLT 397]. In the above decision, this Court held that the complainant need not prove the original transaction meticulously as that of a suit for money. Therefore, I reject the contention raised by the revision petitioner that the absence of particulars of the transaction in the complaint is fatal to prosecution case. Crl.R.P. No.1377 of 2010 6 5. 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. 6. The learned counsel for the 1[st] respondent submits that the cheque was issued in the year 2004 and the accused had already availed of sufficient time to pay back the cheque amount. So, a short time alone can be given to pay the compensation. Having regard to the submission at the Bar, the revision petitioner is given four months time to pay the compensation. 7. The Supreme Court, in the decision in **Kaushalya** **Devi Massand v. Roopkishore** (AIR 2011 SC 2566) **,** held Crl.R.P. No.1377 of 2010 7 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. 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 four 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 8 Crl.R.P. No.1377 of 2010 imprisonment for one day till rising of the court. ii. The Revision Petitioner shall pay a compensation of Rs.3,75,000 (Rupees Three Lakhs Seventy Five thousand only) to the 1[st] respondent/ complainant within a period of four 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 2[nd] May, 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. ## **(K. HARILAL, JUDGE)** ## **Nan /stu** //True copy// P.A to Judge Crl.R.P. No.1377 of 2010 9 10 Crl.R.P. No.1377 of 2010 **K.HARILAL, JUDGE.** **stu**