Shamsudheen v. P.P. Vijayan and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-10-03
Court Decision / Holding: The Criminal Revision Petition is disposed of with: (i) simple imprisonment for one day till rising of the court; (ii) payment of Rs.3,00,000 as compensation within six months; (iii) appearance before the Trial Court to suffer substantive sentence by 03/04/2014 with proof of payment; (iv) default to imprisonment for three months.
Final Disposition: Criminal Revision Petition disposed of accordingly with the terms stated above.

Parties to the Case

Appellants / Petitioners

Shamsudheen

Respondents

P. P. Vijayan
State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri V.G. Arun
• Sri T.R. Harikumar

Counsels for Respondents

• Public Prosecutor SMT. Seena Ramakrishnan

Case Synopsis & Summary

Shamsudheen, the revision petitioner, challenged a conviction for an offence under Section 138 of the Negotiable Instruments Act, 1881, which was sustained by the Additional District & Sessions Court, Vadakara in Criminal Appeal No.484 of 2011 arising out of S.T. No.30 of 2010 (CC 2/2009) before a Judicial First Class Magistrate. The appellant was sentenced to simple imprisonment for three months and directed to pay Rs.3,00,000 as compensation under Section 357(3) Cr.P.C. The High Court of Kerala heard the matter in a Criminal Revision Petition (CRL.R.P. No.1800 of 2013) on 3 October 2013. The petitioner argued that there should be no re‑appreciation of evidence in revisional jurisdiction absent perversity, and highlighted that the complainant had established execution and issuance of the cheque and that presumption under Sections 118(a) and 139 NI Act stood in favour of the complainant. The court cited Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby to emphasize the compensatory/realistic restitution approach in NI Act cases, and, taking into account the petitioner’s willingness to pay within six months, reduced the substantive sentence to one day’s imprisonment and ordered payment of Rs.3,00,000 within six months, with conditions for appearance and a default provision. The petition was disposed of accordingly.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Ends of justice in criminal jurisprudence
Ni Act 138 is quasi-civil with criminal overtone (Kaushalya Devi Massand v. Roopkishore)
Compensatory/restoration emphasis over punitive aspects in Section 138 NI Act cases (Vijayan v. Baby)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner urged against re‑appreciation of evidence in revisional jurisdiction and asserted no perversity in the concurrent findings; the debt was legally enforceable and the presumption under Sections 118(a) and 139 NI Act stood in favor of the complainant; he sought a reduction of the sentence and time to pay compensation.

Contentions of Respondents

The respondents maintained that the concurrent findings were proper and supported by the evidence; they opposed re‑appreciation or any alteration of the sentence and asserted that the punishment should be upheld as just.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Court relies on the SC view that Section 138 offences are essentially quasi-civil with a criminal overtone, emphasizing compensatory relief.
Vijayan v. Baby	2011 (4) KLT 355	Positive	Court cites principle that compensation/restoration should be practical and realistic in NI Act prosecutions.

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 3RD DAY OF OCTOBER 2013/11TH ASWINA, 1935** ## **Crl.Rev.Pet.No. 1800 of 2013** **-------------------------------CRL.APPEAL NO. 484/2011 OF ADDL. DISTRICT & SESSIONS COURT, VADAKARA DATED 20-02-2013** **...** **ST NO.30/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II, VADAKARA DATED 07-07-2011** **...** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **--------------------------------------------------------------------------------** **SHAMSUDHEEN, S/O.MUHAMMED, MANDATH PARAMBA HOUSE, PANNIYANKARA AMSOM, DESOM, KANNANCHERI, KOZHIKODE.** **BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **-------------------------------------------------------------------------------------** **1. P.P.VIJAYAN, S/O.KELU, PADINHARE PUTHIOTTIL HOUSE, CHOMBALA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT-673 308.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **K. HARILAL, J.** **------------------** ## **Crl.R.P. No. 1800 of 2013** **-------------------------------Dated this the 3[rd ] day of October, 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.484 of 2011 on the files of the Additional District and Sessions Court, Vatakara. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.30 of 2010 (CC.2/2009) on the files of the Judicial First Class Magistrate's Court-II, Vadakara. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for a period of three months under Section 138 of the N.I.Act and also directed to pay compensation of Rs.3,00,000/- (Rupees Three Lakhs ## **Crl.R.P. No. 1800 of 2013 2** only) to the complainant/1[st] respondent under Section 357(3) Cr.P.C. In default, the Revision Petitioner shall undergo simple imprisonment for three 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/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 **Crl.R.P. No. 1800 of 2013 3** 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. **Crl.R.P. No. 1800 of 2013 4** 4. Though notice had been served on the respondent, nobody turned up to oppose the petition to condone delay. Hence, delay is condoned. 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 in great hardship. 5. 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 **Crl.R.P. No. 1800 of 2013 5** 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. 6. 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. 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 a compensation of Rs.3,00,000/- (Rupees Three Lakhs **Crl.R.P. No. 1800 of 2013 6** only) to the complainant/1[st] respondent 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 03/04/2014 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** MJL # **Crl.R.P. No. 1800 of 2013 7** # **Crl.R.P. No. 1800 of 2013 8**