High Court of KeralaSingle Judge2013-11-18Disposed of accordingly

SANTHAKUMARI.C v. THE GENERAL MANAGER, THIRUVANANTHAPURAM DISTRICT CO-OP. BANK LTD., REPRESENTED BY NEDUMANGAD MAIN BRANCH MANAGER S. SOLLY; AND STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR

Case / Petition Number:Crl.R.P. No. 2079 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-11-18
Court Decision / Holding: The Criminal Revision Petition is disposed of: i) The substantive sentence of four months' simple imprisonment is reduced to one day, to be served till rising of the court; ii) The petitioner shall pay Rs.21,000/- as compensation to the complainant within three months from today under Sec.357(3) Cr.P.C.; iii) The petitioner shall appear before the Trial Court to suffer the substantive sentence on or before 18-02-2014 with proof of payment; in default, the petitioner shall undergo simple imprisonment for one month. The petition is disposed of accordingly.
Final Disposition: Disposed of accordingly

Parties to the Case

Appellants / Petitioners

SANTHAKUMARI.C, Thushara Bhavan, Poovathoor Po, Nedumangad

Respondents

The General Manager, Thiruvananthapuram District Co-Op. Bank Ltd., represented by Nedumangad Main Branch Manager S. Solly
State of Kerala, represented by Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T.A. Unnikrishnan

Counsels for Respondents

• Sri. Liju V. Stephen, Public Prosecutor

Case Synopsis & Summary

This is a Criminal Revision Petition under Section 397 CrPC filed by the accused challenging concurrent conviction under Section 138 of the Negotiable Instruments Act, 1881, and the sentence imposed by the courts below. The AppellateJudge (ASJ, Fast Track Court-II) Thiruvananthapuram convicted the petitioner for dishonour of a cheque and the JFC at Nedumangad had also recorded a conviction; the revision sought to challenge the sentence and seek leniency. The courts below found that the complainant had successfully established the execution and issuance of the cheque and that the presumption under Secs. 118(a) and 139 NI Act stood in the complainant’s favour. The petitioner contended that revisional jurisdiction does not permit re-appreciation of evidence unless perversity is shown and that the sentence was disproportionate, though she expressed willingness to pay the compensation. The court relied on Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby to emphasize that the NI Act offence is quasi-civil in nature with a criminal overtone, and that compensation can satisfy ends of justice. It held that the sentence could be moderated: imprisonment reduced to one day and compensation of Rs.21,000 payable within three months, with a further conditional appearance before the Trial Court, failing which an additional one month imprisonment would follow. The petition was disposed of accordingly.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Offence under Section 138 NI Act is almost in the nature of a civil wrong with criminal overtone; compensatory relief is often central to justice.
Direction to pay compensation should be practical and realistic in restitution.
In revision, re-appreciation of evidence is permissible only where perversity is shown; otherwise, no re-evaluation of evidence is warranted.
Compensatory aspect should be given priority over punitive elements in NI Act prosecutions.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision is confined to the sentence. The petitioner pressed for re-appreciation of evidence, but revisional jurisdiction does not permit re-evaluation of evidence unless perversity is shown. The courts below correctly held that the complainant discharged the initial burden and that the debt was legally enforceable; presumption under Secs. 118(a) and 139 NI Act stood in favour of the complainant. Citing Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby, compensation should be prioritized and restitution should be practical. The petitioner is willing to pay the compensation within three months and seeks moderate sentencing.

Contentions of Respondents

The respondent did not enter appearance on merits. The conviction and sentence should be upheld on the basis of the concurrent findings and the evidence on record.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Held that Section 138 NI Act offences have civil-like elements and that compensation is a key remedy to meet ends of justice.
Vijayan v. Baby	2011(4) KLT 355	Positive	Directed that restitution in respect of losses due to cheque dishonour should be practical and realistic; supports compensatory focus.

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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** **MONDAY, THE 18TH DAY OF NOVEMBER 2013/27TH KARTHIKA, 1935** **Crl.Rev.Pet.No. 2079 of 2013 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 211/2012 of ADDL. SESSIONS COURT (FAST TRACK COURT)-II, TRIVANDRUM DATED 02-07-2013** **AGAINST THE JUDGMENT IN ST 32/2011 of J.M.F.C.-III, NEDUMANGAD DATED 27-04-2012** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **-----------------------------------------** **SANTHAKUMARI.C, THUSHARA BHAVAN, POOVATHOOR PO, NEDUMANGAD.** **BY ADVS.SRI.T.A.UNNIKRISHNAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **------------------------------------** **1. THE GENERAL MANAGER, THIRUVANANTHAPURAM DISTRICT CO-OP. BANK LTD., REPRESENTED BY THE NEDUMANGAD MAIN BRANCH MANAGER S.SOLLY, PIN 695 541.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN 682 031.** ## **R2 BY PUBLIC PROSECUTOR SRI.LIJU V. STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18-11-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------Crl.R.P. No. 2079 of 2013 -----------------------------------------------------Dated this the 18[th] day of November, 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.211/12 on the files of the Additional Sessions Judge (Fast Track Court-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.32/11 on the files of the Judicial First Class Magistrate's Court-III, Nedumangad. According to the impugned judgment, the Revision Petitioner is sentenced to **Crl.R.P. No. 2079 of 2013** -: 2 :- undergo simple imprisonment for four months and to pay a sum of Rs.21,000/- as compensation to the complainant under Sec.357(3) of the Cr.P.C. In default of payment of compensation, the accused shall undergo simple imprisonment for one month more. The compensation amount, if remitted, shall be paid to the complainant. 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. **Crl.R.P. No. 2079 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 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 three months. 4. Though notice had been served on the 1[st] **Crl.R.P. No. 2079 of 2013** -: 4 :- respondent/complainant, he did not enter appearance to contest the revision petition on merits. 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 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. No. 2079 of 2013** -: 5 :- remedy should be given much priority over punitive aspect. 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 three months, I am inclined to grant three months time to pay the compensation. Similarly, the substantive sentence of simple imprisonment for four months will stand 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.21,000/- (Rupees twenty one thousand only) to the 1[st] respondent/complainant within a period of three 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 **Crl.R.P. No. 2079 of 2013** -: 6 :- as ordered above on or before 18/2/2014 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of one month. The Criminal Revision Petition is disposed of accordingly. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge # **Crl.R.P. No. 2079 of 2013** -: 7 :-