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 [ENTITY] IN [CASE NUMBER] SESSIONS COURT, PALAKKAD DATED 20-08-2014 AGAINST THE [ENTITY] IN [SECTION] of JUDICIAL FIRST CLASS MAGISTRATE COURT, ALATHUR DATED 29.05.2013 REVISION PETITIONER/APPELLANT/ACCUSED: [ENTITY], AGED 38 YEARS, S/[ENTITY], 1/124, [ENTITY], MELARCODE, CHITTILANCHERRY, PALAKKAD. BY ADV. [ENTITY] (VARIKKAPPALLIL RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT: 1. [ENTITY], AGED 52 YEARS, S/O. LATE [ENTITY], ANIKURUTHY HOUSE, KUNISSERY,ALATHUR, PALAKKAD 678 542. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. R2 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: JJJ [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 II Additional Sessions Judge, Palakkad. The above appeal was filed challenging the judgment finding that the revision petitioner is guilty of the said offence, alleged in [CASE NUMBER] on the files of the Judicial First Class Magistrate's Court, Alathur. According to the impugned judgment, the revision petitioner is sentenced to undergo imprisonment till rising of the Court and to pay fine of Rs.41,000/- and in default, to undergo simple imprisonment for two months. On realisation of the fine amount, a sum of Rs.40,000/- shall be given to the complainant as compensation under [SECTION] of the [ACT].
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 the 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.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 the 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. The revision petitioner urged for converting the payment of fine to compensation payable directly to the complainant. But he is ready to pay the fine within four months.
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 four months, I find that the fine can be converted to compensation and grant four months time to pay the compensation. 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 Rs.41,000/- (Rupees Fourty One thousand only) to the 1st respondent as compensation within a period of four months from today. iii. The revision petitioner shall appear before the trial Court to suffer the substantive sentence of simple imprisonment as ordered above on or before 23rd January, 2015, with sufficient proof to show payment of compensation .
iv. In default, the revision petitioner shall undergo simple imprisonment for a period of two months.
If the petitioner had deposited any amount towards compensation pursuant to the order passed by the appellate Court, the said amount shall be given credit to and the balance alone need be paid as compensation to the 1st respondent. In that event, the complainant is allowed to withdraw the said deposit, if any, from the trial court.
The Criminal Revision Petition is disposed of accordingly.
[ENTITY], JUDGE True Copy P.A. to Judge jjj