Partly allowed

Kelappan C.T. v. Bhaskaran

Kerala HC24 May 2013Crl.Rev.Pet/751/2013

Case brief

AI extract

What is this about?

In this criminal revision petition, the High Court of Kerala modified the substantive sentence of imprisonment from three months to one day till the rising of the court. The court permitted the appellant to pay compensation within three weeks before surrendering for the substantive sentence, relying on precedents that emphasize the compensatory nature of offences under Section 138 of the N.I. Act.

What did the court decide?

Substantive sentence of three months imprisonment was set aside and modified to one day's imprisonment. Appellant granted three weeks to pay Rs. 50,000 compensation and surrender before trial court wi

Kelappan C.T. Vs Bhaskaran — 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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FRIDAY, THE 24TH DAY OF MAY 2013/3RD JYAISHTA 1935

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Crl.Rev.Pet.No. 751 of 2013 ()

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AGAINST THE JUDGMENT IN Crl.A. No. 194/2011 of ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA

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AGAINST THE JUDGMENT IN ST 35/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, VADAKARA

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

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REVISION PETITIONER/APPELLANT/ACCUSED:

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KELAPPAN C.T. AGED 60 YEARS S/O.CHEKKAYI, RAJEESH NIVAS, KARTHIKAPPALLY ORKKATERY, VATAKARA, KOZHIKODE DISTRICT.

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BY ADVS.SRI.S.K.SAJU

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SRI.A.RANJITH NARAYANAN SMT.A.SIMI

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RESPONDENTS/RESPONDENTS/COMPLAINANT:

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1. P.BHASKARAN, AGED 58 YEARS S/O.SANKARAN, PARAMBATH HOUSE, MAYYANNUR P.O. VATAKARA, KOZHIKODE DISTRICT - 673 001.

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2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM - 31.

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R1 BY ADV. SRI.ZUBAIR PULIKKOOL R2 BY Sr.PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.HARILAL, J.

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Crl.R.P.No. 751 OF 2013

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Dated this the 24^th 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.194/2011 on the files of the Additional District and Sessions Judge, Vadakara. The above appeal was filed challenging the judgment finding the Revision Petitioner guilty of the said offence passed in S.T.No.35/2009 (S.T. No.98/2008) on the files of the Court of the Judicial First Class Magistrate Court-II, Vadakara. According to the impugned order, the Revision Petitioner is sentenced to undergo simple imprisonment for three months and to pay compensation of Rs.50,000/-. In default he shall undergo simple imprisonment for three months.

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The learned counsel for the Revision Petitioner reiterated the contentions which were raised before the courts below and

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Crl.R.P. No. 751/2013

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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 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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Learned counsel for the Revision Petitioner submits that challenge under this Revision is confined to sentence only. The counsel also submits that the sentence imposed on the Revision Petitioner is disproportionate with the gravity and nature of the offence and if the Revision Petitioner is incarcerated for a long period, his entire family will be put in trouble as he is the only

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Crl.R.P. No. 751/2013

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bread winner of his family. The learned counsel prayed for modifying the substantive sentence of imprisonment also. 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 three weeks. The learned counsel for the respondent submits that a reasonable time can be

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given to pay the compensation.

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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 (AIR 2011 SC 2566) . 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 [Vijayan vs. Baby 2011(4) KLT 355] . 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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Considering the nature and gravity of the offence, the

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Crl.R.P. No. 751/2013

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substantive sentence imposed on the Revision Petitioner is set aside and the Revision Petitioner shall undergo simple imprisonment for one day till rising of the court. In view of the decisions quoted above and submission made at the Bar expressing willingness to pay the compensation within three weeks, I am inclined to grant three weeks time to pay the compensation. Consequently, this Revision is liable to be disposed of subject to 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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ii. The Revision Petitioner shall pay Rs. 50,000/- (Rupee Fifty Thousand only) to the 1^st respondent as compensation within a period of three weeks from today.

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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 14.06.2013 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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Crl.R.P. No. 751/2013

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The Criminal Revision Petition is disposed of accordingly.

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Sd/K.HARILAL, JUDGE

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Kelappan C.T. v. Bhaskaran

Case brief

What is this about?

What did the court decide?

Kelappan C.T. v. Bhaskaran

Case brief

What is this about?

What did the court decide?

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