High Court of KeralaSingle Judge2013-10-23Revision Petition disposed of accordingly; sent...

Thomas George v. Mathew T. Paulose & The State of Kerala

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

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-10-23
Court Decision / Holding: The Revision Petition is disposed of with modified terms: (i) The petitioner shall undergo simple imprisonment for one day till rising of the court; (ii) He shall pay Rs.1,99,000 to the complainant as compensation within six months from today; (iii) He shall appear before the Trial Court to suffer the substantive sentence by 23-04-2014 with proof of payment; (iv) In default, he shall undergo simple imprisonment for three months.
Final Disposition: Revision Petition disposed of accordingly; sentence partially modified and compensation provision ordered with time for payment.

Parties to the Case

Appellants / Petitioners

Thomas George S/o K. George, ModiYil House, Kumbanad P.O., Proprietor, Modi Builders No.1/425A, Nellad Eravipuroor, Pathanamthitta District

Respondents

Mathew T. Paulose, S/O. Avira Paulose, Thruvittasseril, Thalavadi South, Kuttanadu Taluk, Allapuzha District 689 572
The State of Kerala represented by the Public Prosecutor, High Court, Kochi, Kerala - 31

Legal Representation & Advocates

Counsels for Petitioners

• Abraham Samson
• Lovely Samson

Counsels for Respondents

• Public Prosecutor, Sri Liju V. Stephen

Case Synopsis & Summary

This Kerala High Court criminal revision concerns Thomas George, the accused, challenging a conviction under Section 138 of the Negotiable Instruments Act, 1881, and the concurrent sentencing imposed by the Sessions Court (Pathanamthitta) and the Magistrate before him. The revision petition contends that the trial court’s reappraisal of evidence is improper within revisional jurisdiction, which ordinarily cannot reweigh evidence unless perversity is shown. The petitioner further argues that the sentence is disproportionate to the offence, and although willing to comply, cannot pay the ordered compensation immediately; he seeks more time. The State and the complainant supported the lower courts’ findings that the cheque was issued in discharge of a legally enforceable debt and that presumption under Sections 118(a) and 139 NI Act in favor of the complainant stands unrebutted. The High Court cites binding decisions Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC 2566) and Vijayan v. Baby (2011(4) KLT 355), emphasizing that NI Act offences have a largely civil remedial character with a focus on restitution rather than punitive severity. In light of these authorities and the applicant’s willingness to pay within six months, the court modifies the sentence to grant time for compensation while maintaining a minimal custodial element.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 357(3) of the Code of Criminal ProcedureSections 118(a) and 139 of the Negotiable Instruments Act, 1881

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel submitted that re-appreciation of evidence is not permissible in revision unless perversity is shown; no such perversity was pointed out. The challenge is said to be limited to sentencing, with the petitioner arguing that the sentence is disproportionate. He also submitted willingness to pay the compensation but requested a realistic timeframe; hence a six-month period was urged for payment of Rs.1,99,000 and opportunity to undergo the minimum sentence, along with an obligation to appear on a specific date.

Contentions of Respondents

The respondents maintained the concurrent findings of conviction, arguing that the complainant proved execution and issuance of the cheque and that presumption under NI Act Sections 118(a) and 139 stood in favor of the complainant; they contended that the debt was legally enforceable and that the lower courts rightly convicted the petitioner and that the sentence should reflect the nature of the offence.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Court relied on Kaushalya Devi Massand to emphasize that compensation is a crucial remedial facet in NI Act cases and that the offence has a strong civil law flavor, guiding the imposition of a restitution-oriented remedy.
Vijayan v. Baby	2011(4) KLT 355	Positive	Court cited Vijayan v. Baby to stress that compensation should be practical and realistic as a restitutionary element in the NI Act prosecution.

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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 23RD DAY OF OCTOBER 2013/1ST KARTHIKA, 1935** **Crl.Rev.Pet.No. 2013 of 2013 --------------------------------** **Crl.A 103/2013 of SESSIONS COURT,PATHANAMTHITTA DATED 05-08-2013** **ST 213/2010 of JUDICIAL FIRST CLASS MAGISTRATE -II, PATHANAMTHITTA DATED 22-04-2013** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **------------------------------------------** **THOMAS GEORGE S/O.K.GEORGE, MODIYIL HOUSE, KUMBANAD P.O. PROPRIETOR, MODI BUILDERS NO.1/425A, NELLAD ERAVIPEROOR, PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON** **COMPLAINANT(S)/RESPONDENTS & STATE :** **-------------------------------------** **1. MATHEW.T. PAULOSE, S/O.AVIRA PAULOSE, THURUVITTASSERIL, THALAVADI SOUTH, KUTTANADU TALUK ALLAPUZHA DISTRICT 689 572.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT KOCHI, KERALA - 31.** **R2 BY PUBLIC PROSECUTOR SRI.LIJU.V.STEPHEN.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.Rev.Pet.No. 2013 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **1. COPY OF THE NOTICE SENT BY THE COMPLAINANT DATED 19/12/2009.** **2. COPY OF THE DEPOSITION OF PW1 DATED 18/08/2012.** **RESPONDENT'S EXHIBITS :** **NIL** **//True copy//** **P.A to Judge.** **Stu** ## **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 2013 of 2013 -----------------------------------------------------Dated this the 23[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.103/2013 on the files of the Sessions Judge, Pathanamthitta. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.213/2010 on the files of the Judicial First Class Magistrate's Court-II, Pathanamthitta. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one day till rising of the court and to pay 1,99,000/- as₹ compensation under Sec.357(3) of the Code of Criminal Crl.R.P. No. 2013 of 2013 2 Procedure to the complainant and in default, to 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 legally enforceable debt and Ext.P1 cheque was duly Crl.R.P. No. 2013 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 six months. 4. The Supreme Court, in the decision in **Kaushalya** **Devi Massand v. Roopkishore** (AIR 2011 SC 2566) **,** held Crl.R.P. No. 2013 of 2013 4 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. 5. 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. Consequently, this Revision Petition is liable to be disposed of subject to the following terms. - i. The Revision Petitioner shall undergo simple Crl.R.P. No. 2013 of 2013 5 ## imprisonment for one day till rising of the court. ii. The Revision Petitioner shall pay Rs.1,99,000/(Rupees One lakh Ninety nine thousand only) to the 1[st] respondent/complainant as compensation 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 23[rd] April, 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. ## **(K. HARILAL, JUDGE)** stu //True copy// P.A to Judge. Crl.R.P. No. 2013 of 2013 6