Dismissed

Muhammed Badusha v. Shamnad

Kerala HC27 Jun 2017Crl.Rev.Pet/604/2017

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision petition filed by a complainant aggrieved by the reduction of a nine-month prison sentence to custody till the rising of the court. The Court upheld the appellate court's modified sentence and default clause as fair, noting the civil nature of Section 138 offences.

What did the court decide?

The Criminal Revision Petition is dismissed as the appellate court's modification of the sentence and imposition of a default clause are upheld as fair and just.

Muhammed Badusha Vs Shamnad — Cheque Dishonour | Kerala HC (2017)

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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 ALEXANDER THOMAS

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TUESDAY, THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939

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Crl.Rev.Pet.No. 604 of 2017 ()

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CRL.A 489/2012 ADDITIONAL SESSIONS COURT - IV, THIRUVANANTHAPURAM.

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ST 793/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM.

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REVISION PETITIONER/1ST RESPONDENT/COMPLAINANT:

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MUHAMMED BADUSHA, AGED 36 YEARS, S/O.A.A KHADER, T.C 38/627, KAMUKUVILAKAM LANE, CHENTHITTA, CHALAI P.O, THIRUVANANTHAPURAM.

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BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA)

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RESPONDENTS/APPELLANT AND ACCUSE/2ND RESPONDENT AND STATE:

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1. SHAMNAD, SUNI HOUSE, T.C 39/1133, ATTAKULANGARA, CHALAI P.O, THIRUVANANTHAPURAM - 695 001.

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2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 687 031.

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R1 BY ADVS.SRI.R.ANIL

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SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.A.RAJESH R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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mbr/

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ALEXANDER THOMAS, J.

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Crl.R.P.No.604 Of 2017

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Dated this the 27th day of June, 2017.

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O R D E R

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The revision petitioner is the complainant in S.T.No.793/2008 instituted before the Judicial First Class Magistrate Court-II, Thiruvananthapuram, alleging offence punishable under Sec.138 of the Negotiable Instruments Act, in which the 1^st respondent herein has been arrayed as accused therein. The dishonoured Ext.P-1 cheque dated 11.2.2008 is for an amount of Rs.6 lakhs. The trial court as per the judgment dated 11.10.2012 had convicted the 1^st respondent accused and had sentenced him to undergo simple imprisonment for 9 months and directed to pay Rs.6 lakhs, which is the cheque amount, from the date of cheque till realization as compensation under Sec.357(3) of the Cr.P.C. However, no default clause was imposed by the trial court. Aggrieved by the trial court verdict, the 1^st respondent accused has preferred Crl.A.No.489/2012 before the Court of Additional Sessions Judge-IV, Thiruvananthapuram. The appellate Sessions Court concerned as per the impugned judgment rendered on 3.1.2017, has confirmed the conviction but has modified and reduced the substantive

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Crl.R.P.No.604 Of 2017

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sentence of simple imprisonment for 9 months to imprisonment till the rising of the court and has also confirmed the compensation amount of Rs.6 lakhs along with 9% interest from 11.2.2008 (date of cheque) up to date of payment under Sec.357(3) of the Cr.P.C and also introduced default sentence clause of simple imprisonment for one month.

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Heard Sri.D.Kishore, learned counsel appearing for the revision petitioner, Sri.R.Anil, learned counsel appearing for R-1 accused and Sri.Jestin Mathew, learned Prosecutor appearing for R-2 State.

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According to the revision petitioner-complainant, he is fully satisfied with both the trial court judgment as well as the appellate court judgment to the extent it has convicted the 1st respondent-accused and to the extent which has imposed fine amount as well as its default clause imposed by the appellate court. The only grievance of the petitioner is that the appellate court went wrong in reducing the substantive sentence of simple imprisonment for 9 months imposed by the trial court to imprisonment till the rising of the court.

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After hearing both sides, this Court is of the considered view that the present contention urged by the learned counsel for the revision petitioner is misconceived and untenable for reasons more than

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Crl.R.P.No.604 Of 2017

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one. The transaction alleged in the complaint is purely one of borrowal between persons known to each other and the dishonour of the cheque was allegedly issued for repaying the borrowed amount of Rs.6 lakhs. The complainant does not have any case that there was any mens rea of dishonesty or cheating on the part of the accused. That apart, such issues are totally beyond the realm of the ingredients required for establishing conviction for the offence under Sec.138 of the N.I.Act. If such aspects relating to dishonesty, cheating, etc., could be averred and proved by the complainant, then those aspects may be relevant for determining a fair and just sentence that has to be imposed on the accused. However, no such case has been projected by the complainant either before the trial court, appellate court or in this revision.

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The Apex Court in the case Damodar S.Prabhu v. Sayed Babalal reported in AIR 2010 SCC 1907 held that in case of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. Further the Apex Court in the case Kaushalya Devi v. Roopkishore reported in AIR 2011 SC 2566 has held that the offence of dishonour of cheques under Sec.138 of the N.I.Act is essentially a civil wrong which has been given criminal overtones by virtue of the legislative intervention made by the

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Crl.R.P.No.604 Of 2017

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Parliament in incorporating Chapter XVII of the N.I.Act. Their Lordships of the Supreme Court have further categorically held that the gravity of the complaint cannot be equated with an offence under IPC and instead of jail sentence, imposition of fine payable as compensation was found sufficient to meet the ends of justice. This is the gist of the jurisprudential approach that should guide the trial court, appellate court and revisional court in imposing just and fair sentences in offences under Sec.138 of the N.I.Act. However, this does not mean that in no case, the criminal courts are empowered to impose appropriate substantive sentence. There may be really exceptional cases wherein such scenario may be available, but, still the criminal courts should exercise the discretion to impose sentences with due care and caution and should be guided by the jurisprudential approach that the offence created under Sec.138 of the N.I.Act is essentially a civil wrong which has been given criminal overtones due to legislative intervention. That apart, it is interesting to note that the trial court imposed simple imprisonment for 9 months. The said court omitted to impose any default sentence clause in the event of non-payment of compensation. According to the considered view of this Court, the appellate court has fairly and justly intervened by reducing the substantive sentence from 9

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Crl.R.P.No.604 Of 2017

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months to imprisonment till the rising of the court. The compensation amount (Rs.6 lakhs, which is the cheque amount) along with interest @ 9% p.a. as has been left in tact by the appellate court. The appellate court has shown pro-active approach in introducing default clause of one month in the event of non-payment of compensation amount. Thus the appellate court has fully modified the sentence by reducing the substantive sentence from simple imprisonment for 9 months to imprisonment till the rising of the court. In cases like this, it will be more just and fair to reduce the substantive sentence to imprisonment till the rising of the court and the appellate court has given more emphasis on the compensatory aspect along with default clause than the mechanical imposition by way of excessive substantive sentence. At this juncture, Sri.R.Anil, learned counsel appearing for the 1^st respondent-accused submits that the accused has already filed Crl.R.P.No.728/2017 to challenge the legality and correctness of the very conviction as well as the sentence imposed in this case. It is made clear that the findings and observations made by this Court in this revision is only from the narrow compass as to the

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Crl.R.P.No.604 Of 2017

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contention now posed by the complainant in this revision. None of the findings and observations in this petition shall in any manner will preclude the accused from raising his contentions as against the impugned conviction and sentence that he has adverted to in Crl.R.P.No.728/2017 filed by him. Therefore, without prejudice to the contentions of the accused that are raised by him in Crl.R.P.No.728/2017, the present Criminal Revision Petition filed by the complainant is only to be dismissed. It is also made clear that it is for both sides to raise their respective contentions in Crl.R.P.No.728/2017 filed by the accused which is pending before this Court.

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With these observations and directions, the aforecaptioned Criminal Revision Petition stands dismissed.

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ALEXANDER THOMAS, Judge.

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bkn/-

Muhammed Badusha v. Shamnad

Case brief

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Muhammed Badusha v. Shamnad

Case brief

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