High Court of KeralaSingle Judge2013-11-08Criminal Revision Petition disposed of accordin...

Vimala Devi v. State of Kerala and Pathanapuram Primary Co-operative Agricultural and Rural Development Bank Ltd.

Case / Petition Number:Crl.Rev.Pet.No. 2068 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-11-08
Court Decision / Holding: The Criminal Revision Petition is disposed of: i) The Revision Petitioner shall undergo simple imprisonment for one day till rising of the court. ii) The Revision Petitioner shall pay Rs.90,000 to the complainant within five months. iii) The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment for one day on or before 08/04/2014 with proof of payment; in default, she shall undergo three months more imprisonment. The order reflects the decisions in Kaushalya Devi Massand v. Roopkishore and Vijayan v. Baby in shaping the remedial approach, balancing punitive and compensatory aspects.
Final Disposition: Criminal Revision Petition disposed of accordingly.

Parties to the Case

Appellants / Petitioners

Vimala Devi

Respondents

State of Kerala
The Secretary Pathanapuram Primary Co-operative Agricultural and Rural Development Bank Ltd. No.Q-995 Punalur, Kollam-691305

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri. Harish Gopinath

Counsels for Respondents

• Public Prosecution, SMT. Bindu Gopinath
• Advocates Sri. P. Santhalingam (Sr.) and Sri S. Sharan

Case Synopsis & Summary

Vimala Devi, the petitioner, challenges the concurrent conviction under Section 138 of the Negotiable Instruments Act, 1881, and the sentence recorded in the related Criminal Appeal and the judgement of the Judicial First Class Magistrate, Punalur. The revision notes that the trial court had found the complainant’s debt to be legally enforceable, that a cheque was executed and issued in discharge of that debt, and that the statutory presumptions under Sections 118(a) and 139 NI Act favoured the complainant, which the revision petitioner failed to rebut. The petitioner argues that the sole challenge is to the sentence, not the conviction; contends that reappraisal of evidence is not permissible in revisional jurisdiction unless perversity is shown. The complainant’s side contends that the cheque was issued in 2008 and that the petitioner has had ample time to discharge the debt, urging that a practical and realistic restitution is appropriate. The High Court relies on Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC 2566) to treat Sec. 138 NI Act as having civil mischief with a criminal overtone, and on Vijayan v. Baby (2011(4) KLT 355) to emphasize the compensatory remedy. The court grants five months to pay Rs.90,000, reduces the sentence to one day’s simple imprisonment up to the rising of the court, and directs payment and appearance conditions, disposing of the revision petition accordingly.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Offence under Section 138 of the N.I. Act is almost in the nature of civil wrong which has been given criminal overtone
the compensatory aspect of remedy should be given much priority over punitive aspect

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the challenge is confined to the sentence; reappreciation of evidence is not permissible in revisional jurisdiction unless perversity is shown; there is no perverse appreciation; seeks leniency in sentence and time to pay compensation due to financial hardship.

Contentions of Respondents

The complainant’s counsel argues that the cheque was issued in 2008 and the accused has had ample opportunity to pay; time to pay compensation should be granted but with a practical and realistic restitution; reliance on Sections 118(a) and 139 NI Act is placed to sustain the presumption in favour of the complainant; the court should consider the gravity of the offence but also aim to ensure compensation within a reasonable period.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaushalya Devi Massand v. Roopkishore	AIR 2011 SC 2566	Positive	The case characterizes the Section 138 NI Act offence as civil in nature with criminal overtone, supporting a compensatory approach over punitive emphasis.
Vijayan v. Baby	2011(4) KLT 355	Positive	The decision emphasizes practical restitution and practical payment of compensation 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 8TH DAY OF NOVEMBER 2013/17TH KARTHIKA, 1935** ## **Crl.Rev.Pet.No. 2068 of 2013 ()** **-------------------------------------------** **AGAINST THE JUDGMENT IN CRA 139/2011 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM AGAINST THE JUDGMENT IN CC 1912/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PUNALUR** **--------------** ## **PETITIONER(S)/(APPELLANT-ACCUSED):** **-----------------------------------------------------------** **VIMALA DEVI, AGED 47, RESIDING AT PADMALAYAM, PANAYAM CHERRY, ANCHAL P.O. KOLLAM, 691306.** ## **BY ADV. SRI.HARISH GOPINATH** ## **RESPONDENTS/(RESPONDENTS-STATE & COMPLAINANT):** **------------------------------------------------------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. THE SECRETARY** **PATHANAPURAM PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.Q-995 PUNALUR, KOLLAM-691305.** **R1 BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH R2 BY ADVS. SRI.P.SANTHALINGAM (SR.) SRI.S.SHARAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08-11-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **K. HARILAL, J. ---------------------Crl.R.P. No.2068 of 2013 -----------------------------Dated this the 8[th] day of November, 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.139 of 2011 on the files of the Additional Sessions Judge, Adhoc -II, Kollam. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.1912 of 2008 on the files of the Judicial First Class Magistrate's Court-III, Punalur. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.90,000/(Rupees Ninety Thousand only) to the complainant/2[nd] respondent under Section 357(3) Cr.P.C. In default of **Crl.R.P. No.2068 of 2013 2** payment of compensation the Revision Petitioner shall undergo simple imprisonment for a further period of three months for the offence under Section 138 of the Negotiable Instruments Act. 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 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 **Crl.R.P. No.2068 of 2013 3** 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 reappreciate 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 she is unable to raise the said amount forthwith due to paucity of funds. But she is ready to pay the compensation within five months. 4. 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 **Crl.R.P. No.2068 of 2013 4** Revision Petitioner is incarcerated for a period as ordered by the courts below, the entire family will put in great hardship. 5. 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. 6. The learned counsel for the complainant/2[nd] respondent submits that the cheque was issued in the year 2008 and the Revision Petitioner had already availed sufficient time to pay of the debt. So a short time alone **Crl.R.P. No.2068 of 2013 5** can be granted to pay the compensation. In view of the above submission also the Revision Petitioner is given five months time to pay the compensation. 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 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.90,000/- (Rupees Ninety Thousand only) to the complainant/2[nd] respondent within a period of five months form today. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple **6** **Crl.R.P. No.2068 of 2013** imprisonment for one day as ordered above on or before 08/04/2014 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. Sd/- **K.HARILAL JUDGE** MJL