Sameesh v. State of Kerala and Vamadevan

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2014-09-23
Court Decision / Holding: The Criminal Revision Petition is disposed of: (i) one day of simple imprisonment till rising of the court; (ii) compensation of ₹4,20,000 to the complainant within six months; (iii) the revision petitioner to appear before the Trial Court to suffer substantive sentence on or before 23/03/2015 with proof of payment; (iv) in default, six months more imprisonment; (v) any warrants pending to be kept in abeyance for six months.
Final Disposition: Disposition modified: conviction upheld; sentence partly modified with conversion of fine to compensation and six-month payment window; six-month abeyance of warrants; readiness for substantive sentence by a fixed date; petitioner to pay compensation and serve minimal imprisonment in specified terms.

Parties to the Case

Appellants / Petitioners

Sameesh

Respondents

The State of Kerala
Vamadevan

Legal Representation & Advocates

Counsels for Petitioners

• C. R. Vijayakumaran Pillai
• S. Jayakrishnan
• A. Chandra Babu
• R. Santhosh
• S.V. Haritha

Counsels for Respondents

• Sri. Githesh R., Public Prosecutor

Case Synopsis & Summary

This is a Criminal Revision Petition filed by Sameesh challenging the concurrent findings of conviction under Section 138 of the Negotiable Instruments Act, 1881 and the sentence imposed by the Judicial First Class Magistrate’s Court-II, Varkala, as affirmed by the II Additional Sessions Judge, Thiruvananthapuram. The revision petitioner contends that the record should be re-appreciated, but the court notes that revisional jurisdiction does not permit re-examination of evidence for mere perverse findings unless such perversity is shown. The courts below held that the complainant had discharged the initial burden and that the revision petitioner failed to rebut the presumption under Sections 118(a) and 139 of the NI Act, establishing a debt and the execution of Ext. P1 cheque in discharge of that debt. The High Court cites Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby to underscore that Section 138 offences are quasi-civil with criminal overtones and that compensation can meet ends of justice, prioritizing the compensatory remedy over punitive aspects. Accordingly, the judge grants six months to pay the compensation and converts the fine into compensation payable to the complainant. The petitioner is ordered to undergo one day’s simple imprisonment, to pay ₹4,20,000 within six months, to appear for substantive sentence by a specified date, and to have warrants kept in abeyance for six months, with default resulting in six months more imprisonment. The petition is disposed of on these terms.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 118(a) of the Negotiable Instruments Act, 1881Section 139 of the Negotiable Instruments Act, 1881

Submissions & Arguments

Contentions of Appellants / Petitioners

Sameesh contends that the conviction should be kept intact but challenges the leniency of the sentence; he requests re-appreciation of evidence only to the extent permissible in revisional jurisdiction and argues for a conversion of the fine to compensation with a feasible payment timeline.

Contentions of Respondents

The State/complainant maintains that concurrent findings of conviction are proper and that the sentence reflects the severity of the offence; opposes re-appreciation and supports the established resort to compensation to meet ends of justice.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Supreme Court held that the offence under Section 138 NI Act is quasi-civil in nature with criminal overtones and that imposition of compensation can meet ends of justice.
Vijayan v. Baby	2011(4) KLT 355	Positive	SC held that compensation by restitution should be practical and realistic; compensatory relief should be prioritized.

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 23RD DAY OF SEPTEMBER 2014/1ST ASWINA, 1936** **Crl.Rev.Pet.No. 1646 of 2014 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 752/2010 of II ADDITIONAL SESSIONS JUDGE, TRIVANDRUM DATED 19-06-2014** **AGAINST THE JUDGMENT IN ST 2213/2007 of J.M.F.C.-II, VARKALA DATED 25-09-2010** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **------------------------------------------** **SAMEESH, AGED 59 YEARS, S/O. ASANAR, LATHA VILLA, CHERUKUNNAM DESOM, MAITHANAM ROAD, VARKALA VILLAGE, PIN-695 141.** **BY ADVS.SRI.C.R.VIJAYAKUMARAN PILLAI SRI.S.JAYAKRISHNAN (VARKALA) SRI.A.CHANDRA BABU SRI.R.SANTHOSH (VARKALA) SMT.S.V.HARITHA** ## **RESPONDENT(S)/COMPLAINANTS:** **---------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. VAMADEVAN, AGED 75 YEARS, S/O. BHASKARAN, PRIYA HOUSE, VILABH BHAGOM DESOM, VETTOOR VILLAGE, THIRUVANANTHAPURAM-695307.** **BY PUBLIC PROSECUTOR SRI. GITHESH.R.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 1646 of 2014 -----------------------------------------------------Dated this the 23[rd] day of September, 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.752/2010 on the files of the Additional Sessions Judge-II, Thiruvananthapuram. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.2213/2007 on the files of the Judicial First Class Magistrate's Court-II, Varkala. According to the impugned judgment, the Revision **Crl.R.P. No. 1646 of 2014** -: 2 :- Petitioner is sentenced to undergo simple imprisonment for one day till rising of the court and to pay a fine of `4,20,000/- and in default, to undergo simple imprisonment for six 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 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/2[nd] 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 2[nd] respondent. So also, it is found that the debt due to the 2[nd] **Crl.R.P. No. 1646 of 2014** -: 3 :- 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 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. 4. The Supreme Court, in the decision in Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC **Crl.R.P. No. 1646 of 2014** -: 4 :- 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. 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 six months time to pay the compensation. 6. The learned counsel for the revision petitioner urged for converting the fine to compensation directly payable to the complainant/2[nd] respondent. Having **Crl.R.P. No. 1646 of 2014** -: 5 :- regard to the nature and gravity of the offence, I am of the opinion that fine can be converted to compensation payable directly to the complainant/2[nd] respondent and I do so. 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 `4,20,000/- (Rupees Four lakhs and twenty thousand only) to the 2nd respondent/complainant as compensation within a period of six 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 23/3/2015 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of six **Crl.R.P. No. 1646 of 2014** -: 6 :- months. v. Warrant, if any, is pending against the revision petitioner, the same shall be kept in abeyance for a period of six months from today. The Criminal Revision Petition is disposed of accordingly. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge # **Crl.R.P. No. 1646 of 2014** -: 7 :-