High Court of KeralaSingle Judge2015-07-29Criminal Revision Petition disposed of accordin...

Satheesh Chandran v. State of Kerala

Case / Petition Number:Crl.R.P.No.1458 of 2007

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal, J.
Judgment Date: 2015-07-29
Court Decision / Holding: The Criminal Revision Petition is disposed of accordingly: (i) The substantive sentence of imprisonment is reduced to simple imprisonment for one day till rising of the court; (ii) The accused shall pay Rs. 2,00,000 as compensation to the second respondent within three months under Section 357(3) Cr.P.C., with any amount already deposited credited; (iii) The accused shall appear before the Trial Court to suffer the remaining sentence, if any, on or before 30 October 2015, with proof of payment; (iv) In default, the accused shall undergo simple imprisonment for three months. The order supersedes the trial and appellate courts’ sentences to the extent modified. The Criminal Revision Petition is disposed of accordingly.
Final Disposition: Criminal Revision Petition disposed of accordingly.

Parties to the Case

Appellants / Petitioners

Satheesh Chandran, S/o. Gopalakrishna Pillai, Adickattu Veedu, Vadakkumthala Village Kollam

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
A.Somaran, Kottakkattu Thekkathil, Panappetti, Poruvazhy Sasthamcotta Village, Kollam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. C. Rajendran

Counsels for Respondents

• Public Prosecutor, High Court of Kerala, Ernakulam
• Sri. VPK. Panicker

Case Synopsis & Summary

Satheesh Chandran challenges a conviction under Section 138 of the Negotiable Instruments Act, 1881, and the concurrent sentences imposed by the trial court (C.C. No. 226/2002, JFMC Sasthamcotta) and the III Additional Sessions Court, Kollam, which were affirmed on appeal. The revision petition argues two defects: (i) premature institution of the complaint contrary to Section 142 NI Act since the demand notice and payment period were miscalculated; (ii) absence of the original cheque in evidence. The courts below rejected these contentions, holding that limitation was correctly computed using Sections 9 and 10 of the General Clauses Act (excluding the first day) and that the fact of the original cheque was not prejudicial where a certified copy was produced. The High Court, applying Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby, endorses a remedial emphasis favoring compensation over punitive punishment, and exercises its authority to modify the sentence. The Court reduces the substantive sentence to one day’s simple imprisonment to be completed by rising of the court, and directs payment of Rs. 2,00,000 as compensation within three months, with credit for any interim deposits. It also provides for the default consequences and directs appearance on a specified date. The revision petition is disposed of accordingly, balancing restitution with criminal liability.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 142 of the Negotiable Instruments Act, 1881Sections 9 and 10 of the General Clauses ActSection 357(3) of the Cr.P.C.

Legal Doctrines & Maxims

Offence under Section 138 NI Act is almost in the nature of a civil wrong with a criminal overtone (doctrine cited from Kaushalya Devi Massand v. Roopkishore)
Compensatory remittance and practicality of restitution should guide remedy in NI Act prosecutions (reiterated by Vijayan v. Baby)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the complaint under Section 138 NI Act was filed prematurely, misapprehending the computation of the limitation period; the one-month period from the expiry of the notice period (14.11.2001) to 14.12.2001 was not correctly applied, and thus filing the complaint on 13.11.2001 was before the expiry of the period. He also argues that the absence of the original cheque should prejudice the prosecution. He further pleads that the sentence is disproportionate and seeks remission or reduction.

Contentions of Respondents

The respondents urge that the limitation was correctly computed using the General Clauses Act, excluding the first day; the complaint was filed after the expiry period as interpreted by the courts below; the certified copy of the cheque suffices for the NI Act prosecution; and the conviction and sentence were properly grounded on evidence. They argue for maintaining the conviction and the nature of the liability under Section 138, while acknowledging the possibility of a measured sentence in accordance with the compensatory doctrine.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Cited to support the view that compensation can satisfy ends of justice in Section 138 NI Act prosecutions, emphasizing a civil-remedial approach over punitive punishment.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited for the principle that restitution/restoration is practical and should be given priority in the context of dishonour of cheques.

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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** **WEDNESDAY, THE 29TH DAY OF JULY 2015/7TH SRAVANA, 1937** **Crl.Rev.Pet.No. 1458 of 2007 ( ) ---------------------------------** ## **CRL.A 532/2006 of III ADDL.SESSIONS COURT, KOLLAM** **CC 226/2002 of J.M.F.C., SASTHAMCOTTA** **REVISION PETITIONER/APPELLANT/ACCUSED:** **---------------------------------------** **SATHEESH CHANDRAN, S/O. GOPALAKRISHNA PILLAI, ADICKATTU VEEDU, VADAKKUMTHALA VILLAGE KOLLAM.** **BY ADV. SRI.C.RAJENDRAN** **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:** **----------------------------------------------** **1. STATE OF KERALA - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. A.SOMARAJAN, KOTTAKKATTU THEKKATHIL, PANAPPETTI, PORUVAZHY SASTHAMCOTTA VILLAGE, KOLLAM.** **R1 BY PUBLIC PROSECUTOR SRI.JIBU.P.THOMAS. R2 BY ADV. SRI.VPK.PANICKER** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-07-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **STU** ## **K.HARILAL, J.** = = = = = = = = = = = = = = **Crl.R.P.No.1458 of 2007** = = = = = = = = = = = = = = = ==== Dated this the 29[th] day of July, 2015 ## **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.532/2006 on the files of the III Additional Sessions Judge, Kollam. The above appeal was filed challenging the judgment whereby the Revision Petitioner was found guilty of the said offence, passed in C.C.No.226/2002 on the files of the Judicial First Class Magistrate's Court, Sasthamcotta. According to the impugned judgment, the Revision Petitioner stands sentenced to undergo simple imprisonment for six months with compensation of ₹ 2,00,000/- to the complainant. In default, to undergo simple Crl.R.P.No.1458 of 2007 2 imprisonment for a further period of 15 days. 2. The learned counsel for the revision petitioner has raised two contentions in this revision petition. Firstly, it is contended that the institution of the complaint itself was a premature one and is in contravention to the statutory period prescribed under Section 142 of the N.I.Act. It is contended that after dishonour of the cheque, demand notice was sent to the appellant on 23.10.2001 and it was accepted on 30.10.2001. The time for effecting payment expired on 14.11.2001 and one month calculated therefrom is the period within which this the complaint ought to have been filed. That means, according to the accused, the period expired by 14.12.2001 only. But, complaint was filed on 13.11.2001 ie., the complaint was filed one day before the expiry of the statutory period for effecting payment. 3. I am unable to accept the above contention and the court below has rightly considered the period of limitation. According to Sections 9 and 10 of the General Clauses Act, 3 Crl.R.P.No.1458 of 2007 when computing the period of limitation, the first day has to be excluded from the series of days. If that be so, as rightly held by the courts below, the period of limitation will expire on 13.11.2001 and the court below is justified in filing the complaint after 13.11.2001. There is no illegality or impropriety in the finding arrived at by the courts below. 4. Secondly, the learned counsel for the revision petitioner contended that the original of the cheque was not produced before the court; but, going by the judgment passed by the trial court, it could be seen that the certified copy of the original cheque was produced before the court. As far as the prosecution under Section 138 of the N.I.Act is concerned, the question is, whether the accused has committed the offence by dishonour of the cheque? The offence is complete by dishonour of the cheque for want of sufficient funds. That is not disputed in the instant case and in defence, the petitioner has no case that the disputed cheque is not a cheque issued from his account. In the Crl.R.P.No.1458 of 2007 4 above view, I find that no prejudice has been caused to the petitioner by not producing the original cheque. 5. This Court is satisfied that the courts below had meticulously evaluated the evidence on record. 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. 6. At last, 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 contemplated under Section 138 of the N.I.Act. The learned counsel further sought for some time to pay the compensation as he is unable to raise the said amount forthwith due to paucity of funds. 7. Similarly, the substantive sentence imposed on the revision petitioner is too harsh and excessive. The learned Crl.R.P.No.1458 of 2007 5 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 in great hardship. 8. 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. 9. Having regard to the nature and gravity of the offence, in the light of the decisions quoted above and 6 Crl.R.P.No.1458 of 2007 submission made at the Bar, I am inclined to grant three 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, in supersession of the sentence imposed by the trial court and confirmed by the appellate court, the revision petitioner will stand sentenced as follows: 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.2,00,000/- (Rupees Two lakhs only) to the 2[nd] respondent within a period of three months from today under Section 357(3) of the Cr.P.C. If the petitioner had deposited any amount in the trial court in compliance with the interim order of this Court or appellate court, the same shall be given credit to and the balance alone need be paid as compensation. Crl.R.P.No.1458 of 2007 7 iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 30[th] October, 2015 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months. The Criminal Revision Petition is disposed of accordingly. Sd/- **K.HARILAL, JUDGE.** ## **stu** //True copy// P.A to Judge