High Court of KeralaSingle Judge2013-10-18The Criminal Revision Petition is disposed of a...

Vijayan s/o Alikkalkattill Madhavan v. State of Kerala and Mallika

Case / Petition Number:Crl.Rev.Pet.No. 1899 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-10-18
Court Decision / Holding: Criminal Revision Petition disposed of; conviction upheld but sentence modified: one day simple imprisonment till rising of the court; compensation of Rs.1,00,000 to be paid within five months; petitioner to appear before the Trial Court on or before 18/03/2014 to suffer the substantive sentence and show payment proof; default would lead to a further two months’ imprisonment.
Final Disposition: The Criminal Revision Petition is disposed of accordingly with modified sentence and a time-bound compensation plan; conviction upheld.

Parties to the Case

Appellants / Petitioners

Vijayan s/o Alikkalkattill Madhavan

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
K. Mallika, W/o. Ramachandran

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P.K. Mohanan (Palakkad)

Counsels for Respondents

• Sri. Liju V. Stephen (Public Prosecutor)

Case Synopsis & Summary

This Criminal Revision Petition challenges concurrent conviction under Section 138 NI Act and the corresponding sentence, as affirmed by the Additional District & Sessions Court (ADJ) Palakkad in Cr. Appeal No.218/11 and S.T. No.2762/09. The petitioner, Vijayan, was found to have issued a cheque in discharge of a debt owed to Mallika; the trial court held the debt legally enforceable and recognized the presumptions in favour of the complainant under Sections 118(a) and 139 of the NI Act. The appellate court upheld the conviction; however, the Kerala High Court, exercising revisional jurisdiction, refrained from re-appreciating the entire evidence and found no perversity in the lower courts’ evaluation. Citing Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby, the Court treated the offence under Section 138 NI Act as almost civil in nature with a criminal overtone and emphasized restitution over punitive measures. In a pragmatic approach to justice, the Judge granted five months to pay Rs.1,00,000 as compensation and reduced the substantive sentence from three months’ imprisonment to one day’s imprisonment till rising of the court, with a condition to appear before the Trial Court to complete the sentence by 18 March 2014 and to prove payment. The petition is disposed of accordingly, with the final order yielding a time-bound payment plan and a shortened custodial term.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Offence under Section 138 of the NI Act is almost in the nature of civil wrong which has been given criminal overtone.
Restitution in regard to loss on account of the dishonour of a cheque should be practical and realistic.
Ends of justice should guide the remedy in NI Act offences rather than punitive emphasis.

Submissions & Arguments

Contentions of Appellants / Petitioners

The Revision Petitioner submitted that revisional jurisdiction permits interference only for perversity in appreciation of evidence; there was no perversity, hence no re-appreciation. He argued the sentence was harsh and disproportionate in view of the nature of Section 138 offences, which often resemble civil wrongs with criminal overtones. He expressed willingness to pay the compensation within five months and urged reduction of substantive imprisonment and a feasible plan to satisfy the compensation amount.

Contentions of Respondents

The Respondents contended that the findings of conviction and the legal presumptions were properly drawn, and that the appellate court’s decision did not suffer from perversity. They emphasized that the proceedings and evidence supported the debt and the cheque’s issuance; no compelling reason appeared to disturb the concurrent verdicts. The Respondents urged that the revision petition be decided on merits without disturbing the settled conviction, with no necessity for altering the sentence unless warranted by law.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	Court relied on it to characterize Section 138 NI Act as civil in nature with a criminal overlay, supporting restitution as a primary remedy.
Vijayan v. Baby	2011(4) KLT 355	Positive	Court cited it to support practical restitution for losses and to emphasize restitution over punitive measures in 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** **FRIDAY, THE 18TH DAY OF OCTOBER 2013/26TH ASWINA, 1935** **Crl.Rev.Pet.No. 1899 of 2013 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 218/2011 of ADDITIONAL DISTRICT & SESSIONS COURT (AD HOC-I), PALAKKAD DATED 27-06-2013** **AGAINST THE JUDGMENT IN ST 2762/2009 of J.M.F.C.- I, OTTAPPALAM DATED 31-03-2011** **REVISION PETITIONER(S)/ACCUSED:** **-------------------------------** **VIJAYAN, S/O. ALIKKALKATTIL MADHAVAN, AGED 46 YEARS, CHATHNCHIRA VEEDU, KOONATHARA P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT - 679 523.** **BY ADV. SRI.P.K.MOHANAN(PALAKKAD)** **RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT(S):** **-------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** **2. K. MALLIKA, W/O. RAMACHANDRAN, AGED 35 YEARS, SRAMBIKAL VEEDU, KOONATHARA P.O., OTTPALAM TALUK, PALAKKAD DISTRICT - 679 523.** **R1 BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 1899 of 2013 -----------------------------------------------------Dated this the 18[th] 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.218/11 on the files of the Additional District & Sessions Judge, Ad-hoc-I, Palakkad Division. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.2762/09 on the files of the Judicial First Class Magistrate's Court, Ottappalam. According to the impugned judgment, the Revision Petitioner is sentenced to **Crl.R.P. No. 1899 of 2013** -: 2 :- undergo simple imprisonment for a period of three months for the offence under Sec.138 of the N.I. Act and also directed to pay a compensation of Rs.1 lakh to the complainant under Sec.357(3) of the Cr.P.C. In default of payment of compensation, the revision petitioner shall undergo simple imprisonment for two 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/2[nd] respondent had successfully discharged initial burden of proving execution and issuance of the cheque; whereas the Revision Petitioner had failed to rebut **Crl.R.P. No. 1899 of 2013** -: 3 :- the presumption under Section 118(a) and 139 of the N.I. Act which stood in favour of the 2[nd] respondent. So also, it is found that the debt due to the 2[nd] 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. 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 **Crl.R.P. No. 1899 of 2013** -: 4 :- five months. 4. Though notice had been served on the 2[nd] respondent/complainant, she did not enter appearance to context the revision petition on merits. 5. 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 put in great hardship. 6. 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 **Crl.R.P. No. 1899 of 2013** -: 5 :- 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. 7. 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 five months, I am inclined to grant five months time to pay the compensation. Similarly, the substantive sentence of simple imprisonment for three months 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.1,00,000/- (Rupees one lakh only) to the 2[nd] respondent/ **Crl.R.P. No. 1899 of 2013** -: 6 :- complainant under Sec.357(3) of the Cr.P.C. within a period of five 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 18/3/2014 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 # **Crl.R.P. No. 1899 of 2013** -: 7 :-