High Court of KeralaSingle Judge2015-06-12Revision petition disposed of; conviction uphel...

T.K. Swapna v Kannoth Janardhanan and State of Kerala

Case / Petition Number:Crl.R.P. No.402 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2015-06-12
Court Decision / Holding: Conviction upheld; however, the sentence under Section 138 NI Act is modified. The Revision Petitioner Swapna shall undergo simple imprisonment for one day till rising of the court; she must pay Rs. 1,75,000 as compensation under Section 357(3) Cr.P.C. within three months; she shall appear before the Trial Court to suffer substantive sentence as ordered above on or before 14/9/2015 with proof of payment; in default, she shall undergo imprisonment for two months. The Criminal Revision Petition is disposed of accordingly, with the concurrent findings of conviction confirmed but the sentence altered as described.
Final Disposition: Revision petition disposed of; conviction upheld; sentence modified as described; final order issued by the High Court of Kerala on 12 June 2015.

Parties to the Case

Appellants / Petitioners

T.K. Swapna

Respondents

Kannoth Janardhanan
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Smt. I.V. Pramod

Counsels for Respondents

• Adv. M.V. Amaresan
• Adv. V.N. Ramesan Nambisan
• Public Prosecutor Sree Jibu P. Thomas

Case Synopsis & Summary

This High Court of Kerala, Ernakulam, heard Crl.R.P. No. 402 of 2015 on 12 June 2015, challenging the concurrent conviction under Section 138 of the Negotiable Instruments Act, 1881, and the sentence recorded in Crim. Appeal No. 74 of 2008 on the file of the II Additional Sessions Judge, Thalassery. The revision arose from a prosecution where the complainant alleged that Swapna owed Rs. 1,75,000 and that a cheque (Ext. P1) issued for discharge of that liability was dishonoured for insufficient funds. The defence claimed the two signed blank cheques belonged to Swapna’s mother and had been given to Amin Textiles in a separate transaction; the complainant allegedly misused one blank cheque. The trial and appellate courts held that Swapna failed to rebut the statutory presumptions under Sections 118(a) and 139 NI Act and that the debt was legally enforceable, with Ext. P1 issued in discharge of the debt. The Revisional Court affirmed the conviction but scrutinized the sentence in light of Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby, noting the rehabilitative aim of Section 138 NI Act and the primacy of restitution. The court held that the sentence was disproportionate and altered it to one day simple imprisonment, Rs. 1,75,000 as compensation within three months, with Swapna to appear to suffer substantive sentence if payment is not shown, and in default, two months more imprisonment. The revision petition was disposed of accordingly, upholding conviction but modifying the sentence.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Sections 118(a) and 139 of the Negotiable Instruments Act, 1881Section 357(3) of the Code of Criminal Procedure, 1973

Legal Doctrines & Maxims

The NI Act offence under Section 138 is almost civil in nature with a criminal overtone; restitution/compensation can meet ends of justice (Kaushalya Devi Massand v. Roopkishore)
Presumption under Sections 118(a) and 139 NI Act, unless rebutted, favours the complainant; the burden shifts only if probable evidence is adduced (Kumar Exports v. Sharma Carpets)
Direction to pay compensation must be practical and realistic (Vijayan v. Baby)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the mother’s financial dealings and the alleged linkage to Amin Textiles, the issuance of blank cheques, and the lack of independent evidence to connect Swapna to the alleged debt undermine the prosecution’s case. It is argued that there is no tangible proof of execution or engagement with the debt; the defence maintains that the signature and issuance of Ext. P1 were not shown to correspond with a legally enforceable debt, and that the lower courts erred in applying the presumptions under NI Act sections. The revision also argues that mere denial does not shift the onus; the evidence fails to probabilise the defence story, and the sentence is excessive in light of the rehabilitative aims of Section 138 NI Act; thus, conviction should be reversed or the sentence significantly reduced.

Contentions of Respondents

The respondents argue that the complainant proved the debt and the issuance of the cheque; the accused failed to rebut the presumption of liability under Sections 118(a) and 139 NI Act; the cheque was dishonoured for want of funds, establishing a prima facie case of criminal liability; the trial court’s evaluation of evidence is proper, and the appellate court’s concurrence should be maintained. They rely on Supreme Court precedents to emphasize the restorative nature of the remedy under Section 138 NI Act and urge that the sentence be in line with the statutory framework, balancing compensation and deterrence.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Kumar Exports v. Sharma Carpets	2009 (1) KLT 197 (SC)	Positive	Cited to support the proposition that bare denial or data absence is insufficient; some probable evidence must be adduced to shift the burden to the complainant.
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Used to justify that Section 138 NI Act is civil in nature with a criminal overtones and compensation can satisfy ends of justice.
Vijayan v. Baby	2011(4) KLT 355	Positive	Cited to support that restitution in the form of compensation should be practical and realistic.

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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** **FRIDAY, THE 12TH DAY OF JUNE 2015/22ND JYAISHTA, 1937** **Crl.Rev.Pet.No. 402 of 2015** **--------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO. 74/2008 of II ADDITIONAL SESSIONS JUDGE, THALASSERY DATED 17-09-2014.** **AGAINST THE JUDGMENT IN ST 67/2007 of J.M.F.C. (MUNSIFF), PAYYANNUR DATED 13-02-2008.** ## **REVISION PETITIONER(S)/APPELLAND/ACCUSED:** **------------------------------------------** **T.K. SWAPNA, AGED 40 YEARS, D/O.T.K.PADMAVATHY, MAMBALAM, NEAR MAMBALAM BHAGAVATHY TEMPLE, POST PAYYANNUR, THALIPARAMBA TALUK, KANNUR DISTRICT.** **BY ADV. SRI.I.V.PRAMOD** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE:** **-----------------------------------------------** **1. KANNOTH JANARDHANAN, S/O.T.V.KAMMARAN, KANNNOTH VEEDU, POST PAYYANNUR, KANNUR DISTRICT. 670 607.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031.** **R1 BY ADV. SRI.M.V.AMARESAN BY ADV. SRI.V.N.RAMESAN NAMBISAN R2 BY PUBLIC PROSECUTOR SRI. JIBU P. THOMAS** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No.402 of 2015 -----------------------------------------------------Dated this the 12[th] 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.74 of 2008 on the files of the II Additional Sessions Judge, Thalasssery. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.C.No.67 of 2007 on the files of the Judicial First Class Magistrate's Court (Munsiff), Payyannur. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple **Crl.R.P. No.402 of 2015** -: 2 :- imprisonment for one day till rising of the court and to pay a compensation of `1,75,000/- to complainant under Sec.357(3) of the Cr.P.C. In default of payment of compensation, the accused shall undergo simple imprisonment for a period four months. 2. The complainant's case is that the accused owed an amount of `1,75,000/- to him and towards the discharge of that liability, the accused had issued Ext.P1 cheque and when the cheque was presented for encashment, the same was dishonoured for want of sufficient fund. 3. Per contra, the accused contended, in defence, that her mother had some financial transactions with the Amin Textiles in connection with the purchase of cloths from Amin Textiles. In the course of that transaction, she had handed over two blank cheques belonging to the accused to Amin Textiles. The complainant has filed the complaint by misusing one of those signed blank cheques which was given to Amin Textiles. But, **Crl.R.P. No.402 of 2015** -: 3 :- no evidence has been adduced by the accused to prove the transactions between the mother of the accused and Amin Textiles. It is also contended that as per the understanding between her mother and Amin Textiles, her mother agreed to hand over her kuri with the Kappad Kazhakam at Keloth before the date of maturity of the kuri to Amin Textiles. After the maturity of the kuri, the promoter i.e., Kappad Kazhakam handed over the kuri to Amin Textiles. There was a liability of `9,000/- to Amin Textiles by the mother of the accused and towards that liability, the accused handed over two blank cheques to Amin Textiles. Except the above bare suggestions in Sec.313 statement, absolutely no evidence to substantiate the said contentions, at least, with the yardstick of preponderance of probabilities. In Kumar Exports v. Sharma Carpets [2009 (1) KLT 197 (SC), the Apex Court held that bare denial of consideration or existence of data is not sufficient, something **Crl.R.P. No.402 of 2015** -: 4 :- probable has to be brought on record for getting he burden of proof shifted to the shoulders of the complainant. In the instant case, no evidence has been adduced to probabilise the defence story put up in Sec.313 statement. 4. In the above context, the court below can be justified in finding that the accused miserably failed to rebut the presumption under Secs.139 and 118(a) of the N.I. Act. 5. In the Memorandum of Revision Petition, the revision petitioner reiterated the contentions which were raised before the courts below and got rejected concurrently. The revision petitioner urged for a reappreciation 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 or illegality or impropriety in the findings whereby the ## **Crl.R.P. No.402 of 2015** -: 5 :- trial court convicted him. 6. 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 executed and issued in discharge of the said debt. 7. This Court is satisfied that the courts below had meticulously evaluated the evidence on record. 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. **Crl.R.P. No.402 of 2015** -: 6 :- 8. It is also contended that the sentence imposed on the Revision Petitioner is disproportionate with the gravity and nature of the offence contemplated under Sec.138 of the N.I. Act. 9. 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. 10. Having regard to the nature and gravity of **Crl.R.P. No.402 of 2015** -: 7 :- the offence, in the light of the decisions quoted above, I find that the sentence imposed on the revision petitioner is a little excessive and disproportionate with the nature and gravity of the offence. Consequently, in supersession of the sentence imposed on the revision petitioner, by the courts below, the revision petitioner will stand convicted as follows: i. The Revision Petitioner shall undergo simple imprisonment for one day till rising of the court. ii. The Revision Petitioner shall pay `1,75,000/- (Rupees One lakh and seventy five thousand only) to the 1[st] respondent as compensation under Sec.357(3) of the Cr.P.C. within a period of three months from today. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered **Crl.R.P. No.402 of 2015** -: 8 :- above on or before 14/9/2015 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. ## **(K. HARILAL, JUDGE)** ## **Nan/**