IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE [ENTITY] FRIDAY, THE 22ND DAY OF NOVEMBER 2013/1ST AGRAHAYANA, 1935 Crl.Rev.Pet.No. 2293 of 2013 Crl.A 519/2011 of III ADDITIONAL SESSIONS JUDGE, KOZHIKODE DATED 31-07-2012 ST 1297/2009 of JUDICIAL FIRST CLASS MAGISTRATE -I,KOZHIKODE DATED 20-07-2011 REVISION PETITIONER(S)/APPELLANT/ACCUSED: T. MOIDU, AGED 60 YEARS, S/O.MUHAMMED, THAYYULLATHIL P.O., THOONERY NADAPURAM, KOZHIKODE DISTRICT. BY ADV. SRI.ZUBAIR PULIKKOOL COMPLAINANT(S)/RESPONDENTS : 1. SREE GOKULAM CHITS & FINANCE COMPANY PRIVATE LIMITED NO.66, ARCOT ROAD, CHENNAI-600 024 REPRESENTED BY ITS LEGAL ASSISTANT MS.SAVITHA K.V. AGED 31 YEARS, W/O. THYAGARAJ. 2. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.RAJ MOHAN R.PILLAI SRI.P.BANI R2 BY PUBLIC PROSECUTOR SMT.LILLY LESELY. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-11-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: stu [ENTITY], J. = = = = = = = = = = = [CASE NUMBER] = = = = = = = = = = = = = = = Dated this the 22nd day of November, 2013 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 III Additional Sessions Judge, Kozhikode Division. 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. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one day till rising of the court. In addition to the fine of 1,56,000/- imposed by the court below, the accused is directed to pay interest on the cheque amount of 1,55,400/- at 9% interest per annum from the date of cheque till date of payment. In case of default of fine amount and the interest as indicated above, the accused shall undergo simple imprisonment for three months.
2. The learned counsel for the Revision Petitioner reiterated the contentions which were raised before the courts below and got rejected concurrently. 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. The Revision Petitioner failed to point out any kind of perversity in the appreciation of evidence. The courts below had concurrently found that the complainant/1st 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] and [SECTION] of the [ACT] which stood in favour of the 1st respondent. So also, it is found that the debt due to the 1st respondent was a legally enforceable debt and Ext.P2 cheque was duly executed and issued in discharge of the said debt. 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. Therefore, I am not inclined to re-appreciate entire evidence once again and I confirm the concurrent findings of conviction.
3. The counsel for the Revision Petitioner submits that challenge under this Revision is confined 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 fine 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. The learned counsel for the 1st respondent submits the cheque was issued in the year 2007 and the revision petitioner had already availed of sufficient time to pay of the cheque amount. So, a short period alone can be given to pay the fine.
4. 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. 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. So, in a prosecution under [SECTION] of the [ACT], the compensatory aspect of remedy should be given much priority over punitive aspect.
5. 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 six months time to pay the fine. Consequently, this Revision Petition is liable to be disposed of subject to the following terms.
i. The Revision Petitioner shall undergo simple imprisonment for one day till rising of the court.
ii. The Revision Petitioner shall pay a compensation of Rs.1,55,400/- (Rupees One lakh Fifty five thousand and four hundred only) with 9% interest to the 1st respondent/ complainant within a period of six months from today under [SECTION] of the [ACT]
iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 22nd May, 2014 with sufficient proof to show payment of compensation .
iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months.
The Criminal Revision Petition is disposed of accordingly.
[ENTITY], stu JUDGE. True copy P.A to Judge