IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE [ENTITY] WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2014/2ND ASWINA, 1936 [CASE NUMBER] () AGAINST THE JUDGMENT IN [CASE NUMBER] ADDL.DISTRICT & SESSIONS COURT, PALAKKAD DATED 04-12-2013 AGAINST THE JUDGMENT IN [SECTION] of JUDICIAL FIRST CLASS MAGISTRATE, PATTAMBI DATED 30-10-2010 REVISION PETITIONER(S)/APPELLANT/ACCUSED: [ENTITY] AGED 50 YEARS, S/O. VELU ULLATIL ALIAS KOLLADATHU PERUMTHURITHI P.O. CHENNARA, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT(S)/RESPONDENTS/STATE & COMPLAINANT : 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2. [ENTITY], S/O. KUTTAPPU, CHEERAMPATHIL HOUSE, AMETHIKKARA P.O. KUMARANELLUR, OTTAPALAM TALUK - 679 552. R2 BY ADVS. [ENTITY] (SR.) [ENTITY] [ENTITY] R1 BY PUBLIC PROSECUTOR [ENTITY]. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: stu [ENTITY], J. = = = = = = = = = = = [CASE NUMBER] = = = = = = = = = = = = = = = Dated this the 24th day of September, 2014 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 District & Sessions Judge, Palakkad 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, Pattambi. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one month and to pay compensation of 55,000/-. In default, to undergo simple imprisonment for a further period of 15 days.
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/2nd 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 2nd respondent. So also, it is found that the debt due to the 2nd respondent was a legally enforceable debt and Ext.P1 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 compensation 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 compensation within six months.
4. 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 put in great hardship.
5. The Supreme Court, in the decision in Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC 2566), 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.
6. 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 compensation within six months, I am inclined to grant three months time to pay the compensation. Similarly, the substantive sentence of imprisonment is reduced and modified to simple imprisonment for one day till rising of the court. 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.55,000/- (Rupees Fifty Five thousand only) to the 2nd respondent/complainant within a period of three months from today.
iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 26th December, 2014 with sufficient proof to show payment of compensation.
iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of 15 days.
The Criminal Revision Petition is disposed of accordingly.
[ENTITY], JUDGE.
Stu True copy P.A to Judge