High Court of KeralaSingle Judge2015-08-21Conviction upheld; sentence modified to impriso...

Susan Thomas v. Animon Alexander and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 1040 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
Judgment Date: 2015-08-21
Court Decision / Holding: The revision petition is allowed in part. The conviction under section 138 NI Act is confirmed. The sentence of one month’s simple imprisonment is set aside and replaced with imprisonment till the rising of the court. The fine/compensation of Rs. 1,00,000 under section 357(3) Cr.P.C. is maintained, with a direction to keep the execution of the sentence in abeyance for six months to enable payment. If the petitioner fails to pay within six months, the trial court shall take appropriate steps under law. The matter of recovering the amount of compensation shall proceed accordingly.
Final Disposition: Conviction upheld; sentence modified to imprisonment till rising of the court; compensation maintained; six-month stay on execution for payment; revision petition allowed in part; final disposition reflects partial relief to the petitioner.

Parties to the Case

Appellants / Petitioners

Susan Thomas

Respondents

Animon Alexander
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Adv. A. Shafeek (Kayamkulam)

Counsels for Respondents

• Adv. K. Shaj
• Public Prosecutor N. Suresh

Case Synopsis & Summary

This case concerns a criminal revision petition filed by Susan Thomas, proprietor of Jeevan Colour World Private Bus Stand, Kayamkulam, challenging a concurrent conviction under section 138 of the Negotiable Instruments Act, for issuing a cheque in discharge of a legally enforceable debt and its dishonour. The trial court convicted the petitioner under section 138 NI Act in CC 140/2007 (Kayamkulam) and sentenced her to one month's simple imprisonment along with a compensation of Rs 1,00,000 under section 357(3) Cr.P.C., with a further four months imprisonment in default. The Addl. Sessions Judge, Mavelikkara, in Crl.Appeal No.436/2007, affirmed the conviction and sentence. The High Court, in this criminal revision, examined the evidentiary record, including PW1 and Exts P1–P8, and found the guilt to be established, while noting no grounds to interfere with the conviction itself. In light of the petitioner’s illness (cancer), the court considered whether the sentence could be modified. Relying on Damodar S. Prabhu v. Sayed Babalal (SC) for the principle that pecuniary relief should take precedence over punitive measures in cheque dishonour cases, the High Court modified the sentence: the one-month imprisonment was replaced with imprisonment till the rising of the court, while maintaining the Rs 1,00,000 compensation and staying its execution for six months to enable payment. The petition was allowed in part, with the conviction upheld and the sentence adjusted.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 357(3) Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contended that while the conviction under section 138 NI Act stands, the sentence of one month imprisonment should be modified in light of her serious illness (cancer). Counsel relied on the civil-nature aspect of cheque dishonour cases and urged that priority be given to pecuniary relief, citing Damodar S. Prabhu v. Sayed Babalal (SC) to justify relaxation of punitive measures. They requested staying the execution of sentence and enabling payment of the amount within a reasonable time, arguing that immediate imprisonment would exacerbate medical concerns and financial hardship. They asserted there was no perverse appreciation of evidence by the courts below.

Contentions of Respondents

The respondents maintained that the conviction under section 138 NI Act was properly proven by PW1 and Exts P1–P8, and that there was no reason to interfere with the concurrent conviction or the sentence. They argued that the appellate court correctly affirmed the findings, and the sentence was adequate in the circumstances; the court should not substitute or reduce the punitive aspect absent a perverse or erroneous appraisal of evidence.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Damodar S. Prabhu v. Sayed Babalal	2010 (2) KLT 587 SC	Positive	Cited to illustrate that cheque dishonour proceedings are civil in nature and emphasize the primacy of pecuniary relief over punitive measures, supporting the court’s sentence modification.

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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 C.T.RAVIKUMAR FRIDAY, THE 21ST DAY OF AUGUST 2015/30TH SRAVANA, 1937 Crl.Rev.Pet.No. 1040 of 2015 ( ) --------------------------------AGAINST THE JUDGMENT IN CRA 436/2007 of COURT OF ADDL.SESSIONS JUDGE-II, MAVELIKKARA DATED 18-12-2008 AGAINST THE JUDGMENT IN CC 140/2007 of J.M.F.C., KAYAMKULAM REVISION PETITIONER(S)/APPELLANT/ACCUSED: ----------------------------------------------------- SUSAN THOMAS, AGED 44 YEARS PROPRIETOR, JEEVAN COLOUR WORLD PRIVATE BUS STAND KAYAMKULAM, RESIDING AT, BISHOP COMPOUND KOLLAKA P.O., KARUNAGAPPALLY BY ADV. SRI.A.SHAFEEK (KAYAMKULAM) RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------------------------- 1. ANIMON ALEXANDER, S/O.ALEXANDER PALATHINKEEZHIL, CHIRAKADAVOM MURI KAYAMKULAM VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.K.SHAJ R1 BY ADV. SRI.RENJIT GEORGE R2 BY PUBLIC PROSECUTOR SRI.N.SURESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21-08-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T. RAVIKUMAR, J. ========================== Crl.R.P. No.1040 of 2015 ==========================** Dated this the 21[st] day of August, 2015 ## **ORDER** This revision petition is directed against the judgment passed by the Court of Additional Sessions Judge-II, Mavelikkara in Crl.Appeal No.436 of 2007 confirming the order of conviction passed by the Court of Judicial First Class Magistrate, Kayamkulam in C.C.No.140 of 2007. The allegation of borrowal of an amount of `1,00,000/and the bouncing of the cheque issued in discharge of the said legally enforceable debt and the consequential failure to pay the amount due despite the receipt of statutory notice within the statutorily prescribed period led to the prosecution of the revision petitioner under section 138 of the Negotiable Instruments Act. For the conviction thereunder the revision petitioner was sentenced to undergo simple imprisonment for a period of one month and to pay a compensation of `1,00,000/- **Crl.R.P.1040/2015** 2 to the complainant under section 357(3) Cr.P.C. In default of payment of compensation he was ordered to undergo simple imprisonment for a further period of four months. 2. I have heard the learned counsel for the revision petitioner and the learned counsel for the first respondent and the learned Public Prosecutor. Evidently, the conviction under section 138 N.I Act was concurrently entered against the revision petitioner by the courts below. After appreciating the evidence of the first respondent herein as PW1 and Exts.P1 to P8 documentary evidence, the trial court found that the complainant has succeeded in establishing the guilt of the revision petitioner/accused for the offence punishable under section 138, N.I Act. After appreciating the contentions raised in the appeal and perusing the records, the learned Sessions Judge found no ground to invoke the appellate jurisdiction to interfere with the order of conviction passed by the trial court. In a case where the conviction **Crl.R.P.1040/2015** 3 was concurrently entered against the accused for prosecution under section 138, N.I Act, in order to make this Court to invoke revisional power to interfere with the same, the petitioner has to make out a case of utter, perverse appreciation of the evidence by the courts below or that the findings of the courts below are based on no evidence. However, in this case no such grounds were brought out by the revision petitioner to persuade this Court to invoke the revisional jurisdiction. When that be so, I find no reason to interfere with the conviction concurrently entered against the revision petitioner by the courts below. Accordingly, the conviction of the revision petitioner under section 138, N.I Act is confirmed. Now, what survives for consideration is whether the sentence imposed on the revision petitioner for the conviction under section 138, N.I Act invites interference. Evidently, the trial court upon conviction therefor sentenced the revision petitioner to undergo simple imprisonment for one month under section 138, N.I Act and to pay a compensation of **Crl.R.P.1040/2015** 4 `1,00,000/- to the complainant under section 357(3) Cr.P.C. In default of payment of compensation, the revision petitioner was directed to undergo simple imprisonment for a further period of four months. As noticed hereinbefore, the appellate court found no reason to interfere with the sentence as well and accordingly, confirmed the same. While considering the sustainability of the sentence imposed on the revision petitioner for the conviction under section 138 N.I Act, the decision of the Hon'ble Apex Court in **Damodar S.Prabhu v. Sayed Babalal [2010 (2) KLT 587 SC]** assumes relevance. It was held therein that essentially the proceedings under section 138, N.I Act is civil in nature and it was given the colour of criminal proceedings by incorporating section 138 in the N.I Act. The sum and substance of the decision is that in the matter of dishonour of a cheque, the pecuniary aspect has to be given priority over the punitive aspect. The learned counsel for the revision petitioner submitted that the revision petitioner is suffering from the **Crl.R.P.1040/2015** 5 dreaded disease of cancer. Considering all these aspects, I am of the view that the sentence imposed on the revision petitioner to undergo simple imprisonment for a period of one month can be interfered with and modified. In the result, while confirming conviction of the revision petitioner for the offence under section 138, N.I Act, the sentence to undergo simple imprisonment for one month imposed by the trial court which was confirmed by the appellate court is set aside and substituted by the sentence to undergo imprisonment till the rising of court. However, the direction to pay compensation of `1,00,000/- to the complainant/first respondent under section 357 (3) Cr.P.C and in default, to undergo simple imprisonment for a further period of four months are maintained. The learned Magistrate is directed to keep in abeyance the execution of the sentence and also initiation of all steps to recover the amount of compensation for a period of six months so as to enable the revision petitioner to pay the amount of compensation and to appear before the trial court to suffer **Crl.R.P.1040/2015** 6 the sentence of imprisonment till the rising of court, within the stipulated period of six months. In case of failure on the part of the revision petitioner to do so within the stipulated time, the trial court shall take appropriate steps in accordance with law. The revision petition is allowed in part as above. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **spc/** **Crl.R.P.1040/2015** 7 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **Crl.R.P.1040/2015** 8