V.P. Davis v. Public Prosecutor, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 10TH DAY OF OCTOBER 2014/18TH ASWINA, 1936** **Crl.Rev.Pet.No. 814 of 2005 ( ) --------------------------------** **AGAINST THE JUDGMENT IN Crl.A 24/2003 of ADDL.SESSION COURT , N.PARAVUR DATED 30-11-2004** **AGAINST THE JUDGMENT IN ST 591/1999 of JUDICIAL FIRST CLASS MAGISTRATE, N.PARAVUR DATED 16-12-2002** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **------------------------------------------** **V.P.DAVIS, PROPRIETOR, PAULOSE MEMORIAL FINANCIAL ENTERPRISES VADANAPPILLY.** **BY ADVS. SRI.BINOY VASUDEVAN** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT:** - **---------------------------------------** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. T.T.MATHAYI, S/O.THOMAS, THEKKINADATHU HOUSE, NANTHIATIATTUKUNNAM MURI PARAVUR VILLAGE.** **R2 BY ADV. SRI.P.L.DEVADAS R1 BY PUBLIC PROSECUTOR SRI.GITHESH.R.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No. 814 of 2005** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **A : COPY OF THE ORDER DATED 3-2-2005 IN C.M.C.(INDIGENT) NO.42/2004.** ## **RESPONDENT'S ANNEXURES** **:** **NIL** **//TRUE COPY//** **P.A TO JUDGE** ## **K.HARILAL, J.** = = = = = = = = = = = **Crl.R.P.No.814 of 2005** = = = = = = = = = = = = = = = Dated this the 10[th] day of October, 2014 **O R D E R** 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.24/2003 on the files of the Additional Sessions Judge, N.Paravur. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.591/1999 on the files of the Judicial First Class Magistrate's Court, N.Paravur. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for a period of one month and to pay compensation of 60,000/-₹ to the complainant under Sec.357(3) Cr.P.C. and in default to undergo simple imprisonment for two months more. Crl.R.P.No.814 of 2005 2 2. It is the case of the 2[nd] respondent/complainant that the revision petitioner being the proprietor of Poulose Memorial Financial Enterprises owed an amount of ₹ 60,000/- to the 2[nd] respondent. The said amount was deposited by the 2[nd] respondent in the company owned by the revision petitioner. The revision petitioner gave a cheque for 63,000/- including interest of 3,000/- to₹ ₹ discharge the liability. The said cheque when presented for collection was dishonoured due to insufficiency of funds. Though, he had caused to issue a lawyer's notice, he could not yield any result. Thus, the revision petitioner has committed the offence punishable under Sec.138 of the Negotiable Instruments Act. Per contra, the learned counsel for the revision petitioner contended that the amount claimed by the respondent by way of Ext.P1 cheque was not payable by the revision petitioner. According to the revision petitioner, the transaction was between the father of the 2[nd] respondent and the revision petitioner Crl.R.P.No.814 of 2005 3 company and the amount due to the 2[nd] respondent was paid to the father of the 2[nd] respondent. Only a sum of ₹ 20,000/- was payable by the revision petitioner and Ext.P2 cheque was issued only as security for payment of that amount. 3. 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. Crl.R.P.No.814 of 2005 4 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.P2 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. At last, the learned counsel for the Revision Petitioner confined his arguments to sentence only. According to him, 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. Crl.R.P.No.814 of 2005 5 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 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. Crl.R.P.No.814 of 2005 6 6. 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 four months time to pay the compensation. Similarly, the substantive sentence of imprisonment 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.60,000/- (Rupees Sixty thousand only) to the 2[nd] respondent/ complainant within a period of four months from today. If the revision petitioner had deposited any amount towards compensation, the same shall be given credit to and the balance alone needs to be paid as compensation to the complainant. In that case, the Crl.R.P.No.814 of 2005 7 complainant is allowed to withdraw the said amount which had been deposited before the trial court. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 10[th] February, 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.** Stu //True copy// P.A to Judge