Partly allowed

Gopakumar v. Basil Baby

Kerala HC23 May 2013Crl.Rev.Pet/735/2013

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal against conviction and sentence under the Negotiable Instruments Act for cheque dishonour. While confirming conviction, the court modified the imprisonment sentence to one day and granted six months to pay compensation, citing the civil nature of the offence and recovery priority.

What did the court decide?

Sentence reduced to simple imprisonment for one day; six months given to pay Rs. 1,59,000 compensation; default sentence applicable if not paid.

Gopakumar Vs Basil Baby — Cheque Dishonour | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THURSDAY, THE 23RD DAY OF MAY 2013/2ND JYAISHTA 1935

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Crl.Rev.Pet.No. 735 of 2013 ()

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AGAINST THE JUDGMENT IN Crl.A. 293/2011 of ADDITIONAL DISTRICT 7 SESSION JUDGE (ADHOC-III), N.PARAVUR

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AGAINST THE JUDGMENT IN CC 155/2010 of JUDICIAL FIRST CLASS MAGISTRATE-II, PERUMBAVOOR

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========================

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REVISION PETITIONER/APPELLANT/ACCUSED:

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GOPAKUMAR, S/O.NANDAKUMAR KURUP, AGED 33 YEARS PUTHENKULAM HOUSE, KALAMASSERY - 682 013.

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BY ADV. SRI.T.A. KATHIR KUNJU

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RESPONDENT/RESPONDENT/COMPLAINANT:

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-------------------------------------------------------------------

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1. BASIL BABY, S/O.BABY PARVELIKUDY HOUSE, PERUMBAVOOR - 683 542

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2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA

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R1 BY ADV. SRI.PHILIP T.VARGHESE R1 BY ADV. SRI.THOMAS T.VARGHESE R1 BY ADV. SMT.ACHU SUBHA ABRAHAM R1 BY ADV. SMT.T.M.BINITHA R2 BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.HARILAL, J.

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Crl.R.P.No. 735 OF 2013

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Dated this the 23^rd day of May, 2013.

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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.293/2011 on the files of the Court of Additional District and Sessions Judge (Adhoc-III), N.Paravur. The above appeal was filed challenging the judgment finding the Revision Petitioner guilty of the said offence, passed in C.C.No. 155/2010 on the files of the Judicial First Class Magistrate CourtII, Perumbavoor. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for three months under Section 138 of the N.I. Act. He is directed to pay a compensation of Rs.1,59,000/- to the 1^st respondent under Section 357(3)Cr.P.C. In default to undergo simple imprisonment for three months.

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The learned counsel for the Revision Petitioner reiterated

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Crl.R.P. No. 735/2013

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the contentions which were raised before the courts below and rejected concurrently. The grounds 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 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. 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 at. Therefore, I am not inclined to re-appreciate entire evidence once again and I confirm the concurrent findings of conviction.

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Crl.R.P. No. 735/2013

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The counsel for the Revision Petitioner submits that challenge under this Revision is confined to sentence only. The learned counsel for the Revision Petitioner also submits that the sentence imposed on the Revision Petitioner is disproportionate with the gravity and nature of the offence and if he is incarcerated for a long period, his entire family will be put in trouble as he is the only bread winner of his family. The counsel for the Revision Petitioner prayed for modifying the substantive sentence of imprisonment. The counsel for the Revision Petitioner 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. The learned counsel for the respondent submits that a reasonable time can be given to pay the compensation.

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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

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Crl.R.P. No. 735/2013

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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.

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5. Having regard to the nature and gravity of the offence,

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in view of the decisions quoted above and submission made at the Bar expressing willingness to pay the compensation within six

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months, I am inclined to grant six months time to pay the compensation. So also, in supersession of the substantive sentence of imprisonment imposed by the court below concurrently, the Revision Petitioner shall undergo simple imprisonment for one day till rising of the court. Consequently, this Revision is liable to be disposed of subject to the following terms.

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i. The Revision Petitioner shall undergo simple imprisonment for one day till rising of the court.

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Crl.R.P. No. 735/2013

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ii. The Revision Petitioner shall pay Rs.1,59,000/- (Rupees One Lakh Fifty Nine Thousand only) to the 1^st respondent as compensation within a period of six months.

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iii. The Revision Petitioner shall surrender before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 25.11.2013 with sufficient proof to show payment of compensation.

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iv. In default, the Revision Petitioner shall undergo default sentence as ordered by the Appellate Court.

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The Criminal Revision Petition is disposed of accordingly.

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Sd/K.HARILAL, JUDGE

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Gopakumar v. Basil Baby

Case brief

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Gopakumar v. Basil Baby

Case brief

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