Partly allowed

Rajesh v. State of Kerala

Kerala HC24 Oct 2014Crl.Rev.Pet/1509/2006

Case brief

AI extract

What is this about?

This court revised the sentence of imprisonment for cheque dishonour. Relying on precedents that emphasise the civil nature of the offence, the court reduced the substantive sentence to one day and granted the appellant two months to pay compensation before suffering the revised term.

What did the court decide?

Sentence reduced to one day; two months' time granted to pay Rs.30,000 compensation.

Rajesh Vs State of Kerala — Cheque Dishonour | Kerala HC (2014)

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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 OCTOBER 2014/2ND KARTHIKA, 1936

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Crl.Rev.Pet.No. 1509 of 2006 ( )

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CRL.A 17/2004 of II ADDL. SESSIONS COURT, PALAKKAD ST 2440/2002 of J.F.C.M.COURT-I, PALAKKAD

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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RAJEESH, VATTAPARAMBIL HOUSE, MANGALAM P.O., LAKKIDI, PALAKKAD.

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BY ADV. SRI.K.ANAND

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RESPONDENT(S)/RESPONDENTS/STATE & COMPLAINANT:

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

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2. SRI.SAHADEVAN, VATTAPARAMBIL HOUSE, NAGARIPURAM, MANNUR P.O., PALAKKAD.

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R1 BY PUBLIC PROSECUTOR SRI. JIBU P. THOMAS R2 BY ADV. SRI.K.M.KURIAN

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OKB

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K.HARILAL, J

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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Crl. R.P.No.1509 of 2006

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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Dated this the 24^th day of October, 2014

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ORDER

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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, 1881 (for short, 'the N.I. Act') in Criminal Appeal No.17/04 on the files of the court of the II Additional Sessions Judge, Palakkad. The above appeal was filed challenging the judgment finding that the revision petitioner is guilty of the said offence, passed in S.T.No.2440/02 on the files of the Judicial First Class Magistrate's Court-I, Palakkad. According to the impugned judgment, the revision petitioner was sentenced to undergo simple imprisonment for 3 months and to pay a compensation of Rs.30,000/- to the complainant under Section 357(3) of the Cr.P.C., and in default to undergo simple imprisonment for two months.

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Crl.R.P.1509/06 :2:

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The complainant's case is that the accused had issued Ext.P1 cheque in discharge of a sum of Rs.30,000/- borrowed from him on 10-10-2001 and when he presented the cheque for encashment, the same was dishonoured for want of sufficient funds and returned. Though he caused to issue a lawyer's notice demanding the cheque amount, the accused did not pay the same nor did he send a reply denying the liability under the cheque.

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When the accused was questioned under 313 Cr.P.C., he contended that he had borrowed Rs.5,000/- from one Kittu at Puthuppariyaram for Asokan, the son of P.W.1, and he gave Ext.P1 cheque for that transaction. According to him, he has no transaction with the complainant. Ext.P1 cheque was obtained by Asokan on closure of his transaction with Kittu and thereafter misused the said cheque for prosecuting him with an intent to harass him.

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To prove the execution and issuance of the cheque, the complainant was examined as P.W.1 and Exts.P1 to P5 were marked. Though the complainant was cross-examined, nothing brought out to discredit his evidence as regards the execution and issuance of the cheque. After considering the evidence adduced by the complainant, the trial court found that the

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Crl.R.P.1509/06 :3:

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complainant has successfully proved the execution and issuance of the cheque and thereby he is entitled to get presumption under Sections 118(a) and 139 of the N.I. Act in his favour. Though in defence the accused had contended that he borrowed Rs.5,000/- from one Kittu and he gave Ext.P1 cheque as a security for that transaction, no evidence had been adduced to substantiate the possibility of the said contention. In the absence of rebuttal evidence, the trial court found that the accused miserably failed to rebut the presumption under Sections 118(a) and 139 of the N.I. Act, which stood in favour of the complainant. After re-appreciating the evidence on record, the learned District Judge also confirmed the findings whereby the conviction entered and the sentence imposed thereunder. I do not find any perversity in the appreciation of evidence from which the conviction has been entered.

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At last, the learned counsel for the revision petitioner confined his challenge to sentence only. 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.

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Crl.R.P.1509/06 :4:

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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 be put in great hardship.

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The Supreme Court, in the decision in Kaushalya Devi Massand Vs. 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.

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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, the substantive sentence of simple imprisonment for 3 months will stand reduced and modified to simple

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Crl.R.P.1509/06 :5:

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imprisonment for one day till rising of the Court and the petitioner is given two months time to pay the compensation. Consequently, this Revision Petition 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 compensation of Rs.30,000/- (Rupees Thirty thousand only) to the 2^nd respondent/complainant within a period of two months from today.

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iii. The revision petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 26-12-2014 with sufficient proof to show payment of compensation.

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iv. In default, the revision petitioner shall undergo simple imprisonment for a period of two months.

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The Criminal Revision is disposed of accordingly.

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Sd/- ( K.HARILAL, JUDGE)

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okb.

Rajesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rajesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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