High Court of KeralaSingle Judge2013-07-25Criminal Revision Petition disposed of; sentenc...

Shaji M. v Kozhikode Primary Co-operative Agricultural and Rural Development Bank and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No.1522 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-07-25
Court Decision / Holding: The Criminal Revision Petition is disposed of accordingly. The revision is allowed in part: the substantive sentence of three months’ imprisonment is replaced with one day’s simple imprisonment till rising of the court; the applicant shall pay Rs.1,40,000 as compensation to the first respondent within five months; the applicant shall appear before the trial court to suffer the substantive sentence (if payment is not completed) on or before 26 December 2013; in default, the applicant shall undergo a further three months’ simple imprisonment; warrants, if any, are kept in abeyance till 26 December 2013.
Final Disposition: Criminal Revision Petition disposed of; sentence partially modified in terms stated.

Parties to the Case

Appellants / Petitioners

SHAJI.M., S/O.CHEKUTTY, MEKKAIPATTU HOUSE, PARANNUR P.O, NARIKUNI, KOZHIKODE DISTRICT

Respondents

KOZHIKODE PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK, PUTHIYARA, CALICUT-673004, REP BY ITS SECRETARY, RADHAKRISHNAN V , KOLATHARA P O, KOZHIKODE-673655
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

Legal Representation & Advocates

Counsels for Petitioners

• Sri R. Sudhish
• Smt. M. Manju
• Sri K. R. Ranjith

Counsels for Respondents

• Sri K.P. Sudheer
• Sri Arun Mathew Vadakkan
• Public Prosecutor Sri Liju V. Stephen

Case Synopsis & Summary

This Criminal Revision Petition, filed by Shaji M., challenges the concurrent conviction under Section 138 of the Negotiable Instruments Act, 1881, affirmed by the Additional Sessions Judge (Ad-hoc)-II, Kozhikode, in CRA 489/2013, arising from ST 1215/2010 before the Judicial First Class Magistrate, Thamarassery. The revision questions the process by which evidence was assessed, arguing that re-appreciation is not permissible in revisional jurisdiction unless perversity is shown; it does not seek to overturn the conviction. The court notes that the complainant successfully established execution and issuance of the cheque and that the presumptions under Sections 118(a) and 139 NI Act favored the complainant. Citing Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby, the court emphasizes that NI Act offences are quasi-civil in nature and that restitution and compensation form the central remedy. The High Court declines to re-weigh evidence and focuses on sentencing, acknowledging the deposit of compensation and the defendant’s willingness to pay within five months. In light of gravity and precedent, the court reduces the substantive sentence from three months’ imprisonment to one day, orders payment of Rs.1,40,000 as compensation within five months, and provides staged compliance deadlines culminating in appearance by 26 December 2013. The revision petition is disposed of accordingly.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 357(3) of the Code of Criminal ProcedureSection 118(a) of the NI ActSection 139 of the NI Act

Legal Doctrines & Maxims

Offence under Section 138 of the NI Act is almost in the nature of civil wrong with criminal overtone; compensation suffices to meet ends of justice (Kaushalya Devi Massand v. Roopkishore, AIR 2011 SC 2566)
Compensation through restitution should be practical and realistic; compensatory remedy should be given priority over punitive measures (Vijayan v. Baby, 2011(4) KLT 355)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the revisional jurisdiction does not permit a re-appreciation of evidence except where perversity is shown. He argues the conviction is based on valid evidence, that initial burden under Sections 118(a) and 139 NI Act was not rebutted, and that the sentence is harsh and excessive. He submits that he is ready to pay the compensation and requests modification of the sentence (five months to pay) and deposit of any prior amounts toward compensation to be credited. He defends the lower courts’ concurrent findings and asserts no perversion in their appreciation of evidence.

Contentions of Respondents

The respondents’ counsel submits that a reasonable modification in the sentence is warranted, acknowledging the conviction but seeking a proportionate adjustment, given the circumstances and the complainant’s loss. They support ensuring the repaid compensation and advocate allowing the court to set a realistic payment schedule while maintaining the conviction.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Supports the view that NI Act offences are civil in nature with criminal overtones and compensation is a fitting remedy.
Vijayan v. Baby	2011(4) KLT 355	Positive	Emphasizes practical and realistic restitution; compensatory remedy prioritized over punitive measures.

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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** ## **THURSDAY, THE 25TH DAY OF JULY 2013/3RD SRAVANA, 1935** ## **Crl.Rev.Pet.No. 1522 of 2013 ()** **------------------------------------------** ## **AGAINST THE JUDGMENT IN CRA 489/2013 of ADDL.SESSIONS COURT (ADHOC)-II, KOZHIKODE AGAINST THE JUDGMENT IN ST 1215/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,THAMARASSERY** **-------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **------------------------------------------------------------------------** **SHAJI.M., S/O.CHEKUTTY, MEKKAIPATTU HOUSE, PARANNUR P. O, NARIKUNI, KOZHIKODE DISTRICT.** **BY ADVS.SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT(S)/STATE:** **------------------------------------------------------------------------------------** **1. KOZHIKODE PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK, PUTHIYARA, CALICUT-673004, REP BY ITS SECRETARY, RADHAKRISHNAN V , KOLATHARA P O, KOZHIKODE-673655.** ## **2. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN** **R2 BY PUBLIC PROSECUTOR SRI.LIJU V. STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No.1522 of 2013 -----------------------------------------------------Dated this the 25[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.489/2013 on the files of the Additional Sessions Judge, Fast Track (Adhoc)-II, Kozhikode. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.1215/2010 on the files of the Judicial First Class Magistrate's Court-I, Thamarassery. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for three months and to pay a compensation of 1,40,000/- to the complainant under₹ Sec.357(3) of the Code of Criminal Proceedure and in 2 ## **Crl.R.P. No.1522 of 2013** default, to undergo simple imprisonment for a period of one month. 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.P5 cheque was duly **Crl.R.P. No.1522 of 2013** 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. 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 five months. If the Revision petitioner had deposited any amount towards compensation before the trial court, the same shall be given credit and the balance alone need be **Crl.R.P. No.1522 of 2013** 4 paid as compensation. 4. The 1[st] respondent entered appearance through counsel and the learned counsel for the respondent submits that a reasonable modification can be made in the sentence. 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 **Crl.R.P. No.1522 of 2013** 5 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. 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 Rs.1,40,000/(Rupees One lakh Forty thousand only) to the 1[st] respondent as compensation within a period of five months 6 ## **Crl.R.P. No.1522 of 2013** 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 26[th] December, 2013 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months. v. Warrant, if any, pending in execution of the sentence imposed on the Revision petitioner under the impugned judgment shall be kept in abeyance till 26[th] December, 2013. The Criminal Revision Petition is disposed of accordingly. ## **(K. HARILAL, JUDGE)** stu //True copy// P.A to Judge. ## **Crl.R.P. No.1522 of 2013** 7