IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2471 of 2006()
1. GIBI ANTONY, AGED 26,
... Petitioner
Vs
1. SURESH,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.N.ANILKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :19/07/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 2471 of 2006
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Dated this the 19th day of July, 2006
O R D E R
This revision petition is directed against a concurrent verdict
of guilty, conviction and sentence in a prosecution under Section 138
of the N.I. Act.
2. The cheque is for an amount of Rs. 50,000/- The
signature in the cheque is admitted. Handing over of the cheque is
not disputed. That the dishonour was on the ground of insufficiency
of funds is also not disputed. The notice of demand, though
received and acknowledged, did not evoke any response. The
complainant examined himself as PW1 and Exts.P1 to P5 were
marked. The accused did not adduce any defence evidence. In the
course of trial an attempt was made to advance a defence that the
cheque was not issued for the discharge of any legally enforcible
debt/liability, but was issued only as security. It was a blank signed
cheque which was handed over in a transaction with a financier, it
Crl.R.P.No. 2471 of 2006 2
was urged.
3. The courts below, in these circumstances, concurrently came to
the conclusion that the complainant has succeeded in establishing all
ingredients of the offence punishable under Section 138 of the N.I. Act.
Accordingly they proceeded to pass the impugned concurrent judgments.
4. Called upon to explain the nature of challenge which the
petitioner wants to mount against the impugned concurrent judgments, the
learned counsel for the petitioner only prays that leniency may be shown
on the question of sentence. In the absence of challenge on any specific
ground against the verdict of guilty and conviction, I am satisfied that it is
not necessary for me to advert to the facts in any greater detail in this order.
I am satisfied that the verdict of guilty and conviction are absolutely
justified and unexceptionable.
5. Coming to the question of sentence, the petitioner now faces a
sentence of S.I. for a period of three months. There is a direction to pay
fine and also one to pay compensation. Such simultaneous directions are
impermissible in law. However, I am satisfied that the prayer for leniency
Crl.R.P.No. 2471 of 2006 3
can be accepted and appropriate modification of the sentence can be issued.
I have already adverted to the principles governing imposition of sentence
in a prosecution under Section 138 of the N.I. Act in the decision in
Anilkumar v. Shammy (2002 (3) KLT 852). I am not satisfied that
there are any compelling reasons which would justify or warrant imposition
of any deterrent substantive sentence of imprisonment on the petitioner.
Leniency can be shown on the question of sentence. It will have to be
zealously ensured that the complainant, who has been compelled to wait
from 1999 and to fight two rounds of legal battle for the redressal of his
grievances is adequately compensated. Subject to the requirement of
accommodating the component of adequate reparation of the victim,
leniency can be shown and reasonable further time can be granted to the
petitioner. The challenge can succeed only to the above extent.
6. In the nature of the relief which I propose to grant, it is not
necessary to wait for issue and return of notice on the respondent.
7. In the result:
(a) This revision petition is allowed in part.
(b) The impugned verdict of guilty and conviction of the petitioner
Crl.R.P.No. 2471 of 2006 4
under Section 138 of the N.I. Act are upheld.
) But the sentence imposed is modified and reduced. In
supersession of the sentence imposed on the petitioner by the courts below,
he is sentenced to undergo imprisonment till rising of court. He is further
directed under Section 357(3) Cr.P.C. to pay an amount of Rs.57,500/- as
compensation and in default to undergo S.I. for a period of 45 days. If
realised the entire amount shall be released to the complainant.
8. The petitioner shall appear before the learned Magistrate on or
before 16.9.2006 to serve the modified sentence hereby imposed. The
sentence shall not be executed till that date. If the petitioner does not so
appear, the learned Magistrate shall thereafter proceed to take necessary
steps to execute the modified sentence hereby imposed.
(R. BASANT)
Judge
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