IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR[CASE NUMBER]JUSTICE K[CASE NUMBER]HARILAL MONDAY, THE 20TH DAY OF JULY 2015/29TH ASHADHA, 1937 [CASE NUMBER] () AGAINST THE JUDGMENT IN [CASE NUMBER] of ADDL[CASE NUMBER]SESSIONS COURT- III, KOZHIKODE DIVISION DATED 26-05-2012 AGAINST THE JUDGMENT IN [SECTION] of J[CASE NUMBER]F[CASE NUMBER]C[CASE NUMBER]M[CASE NUMBER]COURT -I, KOZHIKODE DATED 29-02-2012 REVISION PETITIONER(S)/APPELLANT/ACCUSED : [ENTITY] P[CASE NUMBER] O/O THE LAW OFFICE, COMMERCIAL TAX, CHEROOTTY ROAD, KOZHIKODE[CASE NUMBER] BY ADV[CASE NUMBER] [ENTITY] RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: 1[CASE NUMBER] [ENTITY], W/O[CASE NUMBER] [ENTITY], [ENTITY], [ENTITY], MALAPARAMBA POST, KOZHIKODE-673009[CASE NUMBER] 2[CASE NUMBER] STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031[CASE NUMBER] R2 BY PUBLIC PROSECUTOR SRI[CASE NUMBER]JUSTINE JACOB THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-07-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: OKB K[CASE NUMBER]HARILAL, J[CASE NUMBER] [CASE NUMBER] Dated this the 20th day of July, 2015[CASE NUMBER] O R D E R
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] of the [ACT] (for short, 'the [ACT]') in [CASE NUMBER] on the files of the court of the III Additional Sessions Judge, Kozhikode Division[CASE NUMBER] The above appeal was filed challenging the judgment finding that the revision petitioner is guilty of the said offence, passed in [CASE NUMBER] on the files of the Judicial First Class Magistrate's Court-I, Kozhikode[CASE NUMBER] According to the impugned judgment, the revision petitioner was sentenced to undergo simple imprisonment for one day till rising [CASE NUMBER] :2:
of the court and to pay a fine of Rs[CASE NUMBER]1,40,000/-, which, if realised, shall be paid to the complainant as compensation under [SECTION] of the [ACT] and in default to undergo simple imprisonment for three months[CASE NUMBER]
2[CASE NUMBER] The learned counsel for the revision petitioner reiterated the contentions which were raised before the courts below and got rejected concurrently[CASE NUMBER] The learned counsel urged for a 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[CASE NUMBER] The revision petitioner failed to point out any kind of perversity in the appreciation of evidence or illegality or impropriety in the findings whereby the trial court convicted him[CASE NUMBER]
3[CASE NUMBER] The courts below had concurrently found that the complainant/1st respondent had successfully discharged the initial burden of proving execution and issuance of the cheque; whereas the revision petitioner had failed to rebut the presumption under [CASE NUMBER] :3:
[SECTION] and [SECTION] of the [ACT] which stood in favour of the 1st respondent[CASE NUMBER] So also, it is found that the debt due to the 1st respondent was a legally enforceable debt and Ext[CASE NUMBER]P1 cheque was duly executed and issued in discharge of the said debt[CASE NUMBER]
4[CASE NUMBER] This Court is satisfied that the courts below had meticulously evaluated the evidence on record[CASE NUMBER] I do not find any kind of illegality or impropriety in the said findings or perversity in the appreciation of evidence, from which the above findings had been arrived at[CASE NUMBER] Therefore, I am not inclined to re- appreciate entire evidence once again and I confirm the concurrent findings of conviction[CASE NUMBER]
5[CASE NUMBER] At last, 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 contemplated under [SECTION] of the [ACT][CASE NUMBER] The learned counsel further sought for some time to pay the fine as he is unable to raise the said amount forthwith due to paucity of funds, if this revision petition is found [CASE NUMBER] :4:
meritless[CASE NUMBER]
6[CASE NUMBER] The Supreme Court, in the decision in [PRECEDENT], held that the offence under [SECTION] of the [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[CASE NUMBER] Further, in [PRECEDENT], 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[CASE NUMBER] So, in a prosecution under [SECTION] of the [ACT], the compensatory aspect of remedy should be given much priority over punitive aspect[CASE NUMBER]
7[CASE NUMBER] Having regard to the nature and gravity of the offence and in the light of the decisions quoted above, the revision petitioner is given five months time to pay the fine[CASE NUMBER] Consequently, this revision petition will stand disposed of subject to the following terms:
i[CASE NUMBER] The revision petitioner shall undergo simple [CASE NUMBER] :5:
imprisonment for one day till rising of the court[CASE NUMBER]
ii[CASE NUMBER] He shall pay a fine of Rs[CASE NUMBER]1,40,000/- (Rupees One lakh forty thousand only) within a period of five months from today and the same shall be given to the 1st respondent/complainant, as compensation under [SECTION] of the [ACT]
iii[CASE NUMBER]He shall appear before the Trial Court to suffer the substantive sentence of simple imprisonment as ordered above on or before 20[CASE NUMBER]12[CASE NUMBER]2015 with sufficient proof to show payment of fine[CASE NUMBER]
iv[CASE NUMBER] In default, he shall undergo simple imprisonment for a period of three months[CASE NUMBER] The Criminal revision petition is disposed of accordingly[CASE NUMBER]
[ENTITY], JUDGE okb[CASE NUMBER]