Partly allowed

Vahab v. Unnikrishnan

Kerala HC22 May 2013Crl.Rev.Pet/776/2013

Case brief

AI extract

What is this about?

High Court disposed of criminal revision petition challenging conviction and sentence under section 138 of Negotiable Instruments Act. Court upheld conviction but modified imprisonment to one day and granted three months to pay fine.

What did the court decide?

Imprisonment reduced to one day; three months time granted to pay fine of Rs.25,000 as compensation; surrender required within three months.

Vahab Vs Unnikrishnan — 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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WEDNESDAY, THE 22ND DAY OF MAY 2013/1ST JYAISHTA 1935

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Crl.Rev.Pet.No. 776 of 2013 ()

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AGAINST THE JUDGMENT IN Crl.A. No. 31/2011 of I ADDITIONAL SESSIONS COURT, PALAKKAD DIVISION

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AGAINST THE JUDGMENT IN S.T.No. 2237/2007 of JUDICIAL FIRST CLAS MAGISTRATE, MANNARKKAD

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

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REVISION PETITIONER/APPELLANT/ACCUSED:

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VAHAB

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S/O.SAID MUHAMMED, AGED 43 YEARS, RASHIDA MANZIL KANHIRAPPUZHA, GOVERNMENT QUARTERS KANHIRAPPUZHA POST.

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BY ADV. SRI.RAJESH SIVARAMANKUTTY

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RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:

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

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1. UNNIKRISHNAN S/O.CHAMIYAR, MELUVEETTIL, POONCHOLA POTTASSERY AMSOM DESOM, MANNARKKAD TALUK PALAKKAD DISTRICT- 678 001.

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2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY ADV. SRI.C.M.KAMMAPPU R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.HARILAL, J.

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Crl.R.P.No. 776 OF 2013

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Dated this the 22^nd 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.31/2011 on the files of the Court of Session, Palakkad Division. The above appeal was filed challenging the judgment finding the Revision Petitioner guilty of the said offence passed in S.T.No.2237/2007 on the files of the Court of the Judicial First Class Magistrate Court, Mannarkkad. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for fifteen days and to pay a fine of Rs.25,000/- and in default to undergo simple imprisonment for one month. If the fine amount is realised, the same shall be given to the 1^st respondent as compensation.

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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. 776/2013

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got 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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The counsel for the Revision Petitioner submits that

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Crl.R.P. No. 776/2013

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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 fine amount 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 fine within six months.

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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 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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Crl.R.P. No. 776/2013

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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 fine within six months, I am inclined to grant three months time to pay the fine. 6. The learned counsel for the Revision Petitioner submits that if the Revision Petitioner is incarcerated for a long period, his entire family will be put in trouble as he is the sole bread winner

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of his family. The counsel prays for modifying the substantive sentence of simple imprisonment also. He also submits that a reasonable time can be given. Therefore, I am inclined to reduce and modify the substantive sentence of imprisonment to 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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ii. The Revision Petitioner shall pay a fine of Rs.25,000/- within

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a period of three months and the same shall be given to the

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1^st respondent as compensation.

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Crl.R.P. No. 776/2013

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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 24.08.2013 with sufficient proof to show payment of fine.

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

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v. If any warrant is pending in execution of the sentence imposed under the impugned judgment the same shall be kept in abeyance till 24.08.2013.

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The Criminal Revision Petition is disposed of accordingly.

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Sd/K.HARILAL, JUDGE

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Vahab v. Unnikrishnan

Case brief

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Vahab v. Unnikrishnan

Case brief

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