High Court Kerala High Court

N.P.Chithrabhanu vs G.Anil Kumar on 9 August, 2006

Kerala High Court
N.P.Chithrabhanu vs G.Anil Kumar on 9 August, 2006
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2739 of 2006()



1. N.P.CHITHRABHANU
                      ...  Petitioner

                        Vs

1. G.ANIL KUMAR
                       ...       Respondent

                For Petitioner  :SRI.K.REGHU KOTTAPPURAM

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :09/08/2006

 O R D E R
                                 R. BASANT, J.
                          - - - - - - - - - - - - - - - - - - - -
                        Crl.R.P.No.  2739  of   2006
                         -  - - - -  - - - - - - - - - - - - - - -
                  Dated this the  9th day of   August, 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. 40,000/- It bears the

date 15.10.1998. The signature in the cheque is admitted. The

notice of demand, though despatched by registered post in the

correct address, was not served and was returned unclaimed. The

complainant examined himself as PW1. Exts.P1 to P7 were marked.

The accused, in the course of trial, took up a defence that the

cheque was not issued for the discharge of any legally enforcible

debt/liability, but was issued to DW1 as security. It was contended

that the accused does not know how the cheque reached the hands of

the complainant from DW1. The accused examined DW1. But

DW1 did not support the case of the accused.

Crl.R.P.No. 2739 of 2006 2

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 does not strain to assail the verdict of

guilty and conviction on merits. The counsel only prays that leniency may

be shown on the question of sentence. I reckon that as an informed and

fair stand taken by the learned counsel for the petitioner. 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 for a period of two weeks and to pay an amount of

Rs.41,000/- as compensation and in default to undergo S.I. for a period of

one month. I find merit in the prayer for leniency. 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

Crl.R.P.No. 2739 of 2006 3

(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 October, 1998

and to fight two rounds of legal battle for the redressal of his genuine

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

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,

Crl.R.P.No. 2739 of 2006 4

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. 47,500/- (Rupees forty seven thousand five hundred only) as

compensation and in default to undergo S.I. for a period of one month. If

realised the entire amount shall be released to the complainant.

8. The petitioner shall appear before the learned Magistrate on or

before 16.10.2006 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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