High Court of KeralaSingle Judge2015-06-03Criminal Revision Petition disposed of accordin...

SIVAN, S/O. KUNJANDI v. SEVEN STAR KURIES AND LOANS & STATE OF KERALA

Case / Petition Number:CRL.R.P.No.1227 of 2003

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. HARILAL
Judgment Date: 2015-06-03
Court Decision / Holding: Criminal Revision Petition disposed of. The concurrent conviction under Section 138 NI Act is upheld. The substantive sentence is reduced from 10 days to simple imprisonment for one day till rising of the court. The petitioner is directed to pay Rs.30,000 as compensation under Sec.357(3) Cr.P.C. within four months from today. The petitioner must appear before the Trial Court to suffer the remaining substantive sentence on or before 3/10/2015 with proof of payment; in default, he shall undergo simple imprisonment for a further period of two months. The revision petition is disposed of accordingly.
Final Disposition: Criminal Revision Petition disposed of accordingly.

Parties to the Case

Appellants / Petitioners

Sivan, S/O. Kunjandi

Respondents

Seven Star Kuries and Loans
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M.B. Prajith

Counsels for Respondents

• Public Prosecutor Sri. Jibu P. Thomas

Case Synopsis & Summary

This is a criminal revision petition filed by Sivan challenging the concurrent conviction under Section 138 of the Negotiable Instruments Act and the sentence imposed by the Sessions Court, Thrissur, on the basis of a trial conducted in ST 1200/1998 before the Judicial First Class Magistrate’s Court-II, Thrissur. The complainant, a firm engaged in chitty transactions, alleged that the accused issued Ext. P1 cheque for Rs 25,000 in discharge of a debt; the cheque was dishonoured for want of funds. The trial court and the Sessions Court held that the debt was a legally enforceable debt and that the presumption under Sections 118(a) and 139 NI Act stood in the complainant’s favor, with the accused failing to rebut that presumption. The defence contended that the complainant was not a registered partnership firm at the start of the transaction, but later obtained registration; evidence showed registration at filing. The revision petition relied on Supreme Court rulings Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby, urging compensation should be the focus rather than punitive imprisonment. The High Court, taking a pragmatic view, granted four months to pay Rs.30,000 as compensation, reduced the substantive imprisonment from 10 days to one day until rising of the court, and directed appearance for execution of the remaining sentence by a specified date, with default consequences. The petition is disposed of accordingly.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Offence under Section 138 of the N.I. Act is almost in the nature of a civil wrong which has been given criminal overtone.
Compensatory aspect of remedy should be given priority over the punitive aspect in prosecutions under Section 138 NI Act.
Direction to pay compensation by way of restitution should be practical and realistic (Vijayan v. Baby).
Revision jurisdiction does not permit re-appreciation of evidence unless perversity is shown.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the maintainability of the complaint hinged on whether the complainant was a registered partnership firm at the relevant time; although registration occurred later, the filing reflected the firm’s registered status. The defence argued the particulars of the transaction and the validity of Ext. P1 in discharge of a genuine debt were not satisfactorily established, and that the complainant’s claim was not sufficiently proven; the accused urged that the trial court’s findings should be reassessed only for perversity, not on re-appreciation of evidence. Relying on Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby, the petitioner pressed for emphasis on the compensatory remedy over punitive measures and sought leniency in sentencing, with time to pay compensation and a reduction of the imprisonment. The revision court was urged to reconsider only for perversity, not to overhaul the evidence, and to grant relief consistent with the civil-leaning nature of the offence.

Contentions of Respondents

The respondents submit that the complainant proved a debt due and Ext. P1 cheque issued in discharge of that debt; the cheque was dishonoured, and the accused failed to rebut the statutory presumption under Sections 118(a) and 139 NI Act. They argue that the courts below correctly convicted and that the revisional court should not re-appreciate evidence except for perversity. They advocate upholding the conviction and implementing appropriate relief consistent with the offence’s gravity, citing Kaushalya Devi Massand and Vijayan v. Baby to support a remedial emphasis on compensation and practical restitution.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Cited to support the view that the NI Act Sec 138 offence is civil in nature with a criminal overtone and to justify prioritizing compensation/remedial relief.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to emphasize that restitution/compensation should be practical and realistic in Section 138 NI Act prosecutions.

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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 3RD DAY OF JUNE 2015/13TH JYAISHTA, 1937** **Crl.Rev.Pet.No. 1227 of 2003** **----------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO. 193/2002 of SESSIONS COURT,THRISSUR.** **AGAINST THE JUDGMENT IN ST 1200/1998 of J.M.F.C.-II, THRISSUR.** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **SIVAN, S/O. KUNJANDI, PULIPARAMBIL HOUSE, AYYANTHOLE, THRISSUR.** ## **BY ADV. SRI.M.B.PRAJITH** ## **RESPONDENT/RESPONDENTS/COMPLAINANT:** **-----------------------------------** **1. SEVEN STAR KURIES AND LOANS, VIMAL BUILDING, ERINJERI ANGADI, REPRESENTEED BY ITS PARTNER V. KRISHNAKUMAR, S/O. LAKSHMIKUTTY AMMA, VELAKKATIL HOUSE, CHETTUPUZHA, THRISSUR.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.JIBU P. THOMAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ORDER ON CRL.M.A.NO.4897 OF 2003 IN CRL.R.P.NO.1227 OF 2003:** ## **CLOSED** **3/6/2015** **SD/- K. HARILAL, JUDGE.** //true copy// P.S. to Judge **K. HARILAL, J. -----------------------------------------------------Crl.R.P.No.1227 of 2003 -----------------------------------------------------Dated this the 3[rd] day of June, 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.193 of 2002 on the files of the Sessions Judge, Thrissur. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No. 1200 of 1998 on the files of the Judicial First Class Magistrate's Court-II, Thrissur. According to the impugned judgment, the Revision Petitioner is **Crl.R.P.No.1227 of 2003** -: 2 :- sentenced to undergo simple imprisonment for 10 days and also directed to pay a sum of `30,000/-. In default, the petitioner/accused shall undergo simple imprisonment for a further period of three months. 2. The case of the complainant is that the complainant is a firm conducting chitty and the accused is a subscriber of the chitty. In discharge of the amount defaulted by the accused, the accused issued Ext.P1 cheque for an amount of `25,000/towards the amount due to the complainant. But, when the complainant presented the cheque for encashment, the same was dishonoured and returned for want of sufficient fund. Even though he caused to issue a lawyer's notice, the same was returned as refused. Thus, the accused has committed the offence punishable under Sec.138 of the N.I. Act. 3. In defence, the accused challenged the maintainability of the complaint on the ground that the complainant is not a registered partnership firm; **Crl.R.P.No.1227 of 2003** -: 3 :- but it has brought out in evidence that even though the complainant firm was not a registered firm at the time of commencement of the kuri transaction, later, the firm got registered and at the time of filing the complaint, it was a registered firm. Therefore, the court below is justified in rejecting the said contention. Even though the complainant was examined as P.W.1 and Exts.P1 to P6 were marked to discharge the initial burden of proving execution and issuance of the cheque, no rebuttal evidence has been adduced by the accused. Though, during the course of examination, it was suggested that the cheque was not given in the transaction, as stated by the complainant, the accused admitted issuance of the cheque. The only dispute is that the cheque was not issued for the liability, as stated by the complainant. But, he has not disclosed the particulars of the transaction in which he issued the said cheque to the complainant. Thus, he has miserably failed to rebut **Crl.R.P.No.1227 of 2003** -: 4 :- the presumption which stood in favour of the complainant. There is no illegality or impropriety in the finding that the accused failed to rebut the presumption. 4. 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 **Crl.R.P.No.1227 of 2003** -: 5 :- 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 re-appreciate entire evidence once again and I confirm the concurrent findings of conviction. 5. According to the Revision Petitioner, the sentence imposed on the Revision Petitioner is disproportionate with the gravity and nature of the offence. The revision petitioner sought for some time to pay the compensation, if the revision petition is found meritless. 6. 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 **Crl.R.P.No.1227 of 2003** -: 6 :- the revision petitioner is incarcerated for a period as ordered by the courts below, the entire family will put put in great hardship. 7. 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. 8. Having regard to the nature and gravity of the offence, in the light of the decisions quoted above and **Crl.R.P.No.1227 of 2003** -: 7 :- submission made at the Bar, I am inclined to grant four months time to pay the compensation. Similarly, the substantive sentence of imprisonment for 10 days will stand 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 modified 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 Rs.30,000/- (Rupees Thirty thousand only) within a period of four months from today to the 1[st] respondent as compensation 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 as ordered -: 8 :- **Crl.R.P.No.1227 of 2003** above on or before 3/10/2015 with sufficient proof to show payment of compensation. iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of two months. The Criminal Revision Petition is disposed of accordingly. ## **Sd/-** **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge