IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
Crl.Rev.Pet.No.1332 OF 2017
AGAINST THE ORDER/JUDGMENT IN ST 721/2008 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -II,PATHANAMTHITTA
AGAINST THE ORDER/JUDGMENT IN CRA 53/2015 DATED 11-08-2017 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, PATHANAMTHITTA
REVISION PETITIONER/S:
SHOBHANA
W/O. OMANAKUTTAN,
NILAKKAL HOUSE,
KAVIYOOR P.O.,THIRUVALLA.
BY ADV. SMT.T.SUJA
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 SANTHAMMA K. G.
W/O. PURUSHOTHAMAN,
PADINJAREKUTTU, KAVIYOOR P.O.,
THIRUVALLA, PIN-689645.
BY ADV. SRI.MANU RAMACHANDRAN
BY SMT. M. K. PUSHPALATHA, SR.PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
07.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No.1332 OF 2017
-2-
ORDER
The revision petitioner was convicted and sentenced by the courts below under Section 138 of the Negotiable Instruments Act, (for short "the N.I. Act"), 1881.
2. Heard.
3. The courts below correctly appreciated the oral and documentary evidence and concurrently found that the revision petitioner executed Ext.P1 cheque as contemplated under Section 138 of the N.I.Act and committed the offence under Section 138 of the N.I.Act. No material has been brought to the notice of this Court to indicate that the appreciation of evidence or the concurrent finding of conviction by the courts below was perverse or incorrect. In the said circumstances, I find no reason to interfere with the concurrent finding of Crl.Rev.Pet.No.1332 OF 2017 -3- conviction passed by the courts below under Section 138 of the N.I.Act.
4. The learned counsel for the revision petitioner has pleaded for leniency in the matter of sentence. The learned counsel for the revision petitioner has submitted that since the revision petitioner is a teacher working in an aided school, if the fine exceeding Rs. 2000/- is awarded, the revision petitioner will be dismissed from the service. The learned counsel for the revision petitioner has also prayed for lifting the sentence of imprisonment awarded by the appellate court.
5. The offence under which the conviction was entered into, is the offence under Section 138 of the N.I.Act. The Division Bench of this court in Saseendran Nair v. General Manager [1996(2) KLT 482] held that the question whether an offence would involve moral turpitude or not has to be decided on the facts of each Crl.Rev.Pet.No.1332 OF 2017 -4- case and all offences do not necessarily involve moral turpitude.
6. The Division Bench of this court in K.S.R.T.C. v. Abdul Latheef [2005(3) KLT 955] held that even if there was conviction, under Rule 18 of Civil Services (Classification, Control and Appeal) Rules 1960, it was incumbent on the appointing authority to consider the circumstances as to the misconduct which led to the conviction and pass appropriate orders. It was further held in K.S.R.T.C (supra) that every case of conviction shall not result in dismissal.
7. The Division Bench in K.S.R.T.C (supra) further held thus:-
"When the requirement in Section 138 of the N.I.
Act is satisfied, one will be deemed to have committed offence. It is only a deeming provision. Offence under Section 138 of the N.I. Act being an offence in the commercial practice cannot be taken as one involving moral turpitude, in the absence of any other cogent Crl.Rev.Pet.No.1332 OF 2017 -5- material to discern moral turpitude."
8. In this case, no special circumstance has been pointed out to show that there was moral turpitude. Having gone through the facts and circumstance of this case, I find that the offence found against the revision petitioner in this case has no reflection on the moral turpitude.
9. In view of the above, the apprehension expressed by the learned counsel for the revision petitioner has no foundation. Considering the facts and circumstances of the case, including the amount covered by Ext.P1 cheque, I am of the view that the sentence awarded by the appellate court can be modifed and reduced to a fine of Rs.6,50,000/- (Rupees six lakh and fifty thousand only) and in default to simple imprisonment for two months, to meet the ends of justice. It is ordered accordingly. If the fine is realised, the entire amount shall be given to the complainant as Crl.Rev.Pet.No.1332 OF 2017 -6- compensation under Section 357(1)(b) Cr.P.C.
In the result, this revision petition stands allowed in part as above.
The revision petitioner is granted six months to pay the fine/compensation as requested by the learned counsel for the revision petitioner.
Needless to state that if the revision petitioner had already deposited any amount before the trial court pursuant to the direction of this Court, the said amount shall be released to the complainant as part of the compensation.
Sd/-
B.SUDHEENDRA KUMAR JUDGE Nkr/07.01.2021