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 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act') in Criminal Appeal No.197/01 on the files of the court of the Additional Sessions Judge, North Paravur. The above appeal was filed challenging the judgment finding that the revision petitioner is guilty of the said offence, passed in C.C.No.560/97 on the files of the Judicial First Class Magistrate's Court, Perumbavoor. According to the impugned judgment, the revision petitioner was sentenced to undergo simple imprisonment for six months for the offence punishable under Section 138 of the N.I. 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/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 118(a) and 139 of the N.I. 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 at. Therefore, I am not inclined to re-appreciate entire evidence once again and I confirm the concurrent findings of conviction.
3. At last, the learned counsel for the revision petitioner confined his arguments to the sentence imposed on the revision petitioner, which, according to him, is too hard, excessive and disproportionate with the nature and gravity of the offence under Section 138 of the N.I. Act and prayed for setting aside the sentence of imprisonment. If the revision petitioner is incarcerated for a period as ordered by the courts below, the entire family will be put in great hardship.
4. The Supreme Court, in the decision in Kaushalya Devi Massand Vs. Roopkishore (AIR 2011 SC 2566), held that the offence under Section 138 of the N.I. 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 Vijayan Vs. Baby (2011 (4) KLT 355), 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 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect.
5. In the light of the decisions referred above and the submission made at the Bar, I am inclined to modify the sentence imposed on the revision petitioner. The sentence of simple imprisonment for 6 months will stand reduced and modified to simple imprisonment for one day till rising of the Court and he is directed to pay Rs.1,30,000/- to the complainant as compensation under Section 357(3) of the Cr.P.C. 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.1,30,000/- (Rupees One lakh thirty thousand only) to the 2nd respondent/complainant within a period of three months from today under Section 357(3) of the Cr.P.C. If the revision petitioner had already deposited one half of the cheque amount before the trial court in compliance with the order dated 14-2-2003 of this Court, the same shall be given credit to and the balance alone needs to be paid as compensation and in that event, the complainant is allowed to withdraw the said amount, which had been deposited.
iii. The revision petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 12-1-2015 with sufficient proof to show payment of compensation.
iv. In default, the revision petitioner shall undergo simple imprisonment for a period of two months.
The Criminal Revision Petition is disposed of accordingly.
Sd/-
(K.HARILAL, JUDGE)
okb.