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2013 DIGILAW 536 (KER)

Choyan Latha v. State of Kerala

2013-06-30

K.HARILAL

body2013
ORDER : K. HARILAL, J. 1. 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 (for short, 'the N.I. Act') in Criminal Appeal No.175/2007 on the files of the Additional Sessions Judge, Thalassery. The above appeal was filed challenging the judgment finding that the Revision Petitioner guilty of the said offence, passed in S.T.C.No.9372 on the files of Judicial First Class Magistrate Court-II, Kannur. According to the impugned judgment, the Revision Petitioner is sentenced to undergo imprisonment till rising of the court and directed to pay Rs. 2,80,000/- (Rupees Two lakhs Eighty thousand only) as compensation u/s 357(3) Cr.P.C. to the complainant/1st respondent. In default to undergo simple imprisonment for one month. 2. The learned counsel for the Revision Petitioner reiterated the contentions which were raised before the courts below and got rejected concurrently. The contentions raised before me are also urging for 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 courts below had concurrently found that the 1st 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 1st respondent. So also, it is found that the debt due to the 1st respondent was a legally enforceable debt and Ext.P1 cheque was duly executed and issued in discharge of the said debt. The Revision Petitioner failed to point out any kind of perversity in the appreciation of evidence. 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. 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 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 v. 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 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 Rs. 2,80,000/- (Rupees Two lakhs Eighty thousand only) to the 1st respondent/complainant as compensation within a period of six months from today. (iii). The Revision Petitioner shall surrender before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 13th December, 2013 with sufficient proof to show payment of compensation. (iv). In default, the Revision Petitioner shall undergo simple imprisonment for one month. 6. The Criminal Revision Petition is disposed of accordingly.