IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3216 of 2006()
1. SAYOOJA, AGED 30 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. K. NADARAJAN,
For Petitioner :SRI.RINNY STEPHEN
For Respondent :SRI.K.R.SUNIL
The Hon'ble MR. Justice R.BASANT
Dated :31/10/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 3216 of 2006
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Dated this the 31st day of October, 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. 6 lakhs. It bears the
date 25.4.1999. The petitioner, a woman, now faces a sentence of
S.I. for a period of one year. There is also a direction to pay a fine
of Rs.5,000/- and in default to undergo S.I. for a further period of
three months.
3. The signature in the cheque is admitted. The notice of
demand succeeded in evoking only Ext.P9 reply notice. No payment
was made. The liability to pay the amount was disputed. The
complainant, in these circumstances, examined PWs. 1 to 3 and
proved Exts.P1 to P9. PW1 is the complainant. PWs. 2 and 3 are the
Managers of the drawee and collecting banks. Ext.P1 is the cheque
Crl.R.P.No. 3216 of 2006 2
and Ext.P9 is the reply notice. The accused examined herself as DW1.
She proved Exts.D1 to D4.
4. To put it in a nutshell, the contention was that the cheque was
not issued for the discharge of any legally enforcible debt/liability, but was
issued only as one of the many signed blank cheques issued as security in
connection with a joint business between the parties. All the other cheques
were returned, but Ext.P1 was retained by the complainant and was
misutilised to foist a false case. This was the short contention urged.
5. 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.
6. 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. He only prays that leniency may be shown
on the question of sentence. He further prays that the petitioner, a woman,
may be granted reasonable further time to raise the requisite amount and
Crl.R.P.No. 3216 of 2006 3
avoid the default sentence.
7. Having gone through the impugned concurrent judgments, I
reckon that as an informed and fair stand taken by the learned counsel for
the petitioner. 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.
8. Coming to the question of sentence, 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 (2002 (3) KLT 852). In the facts
and circumstances of the case, I do not find any compelling reasons
which can persuade this court to insist on imposition of any deterrent
substantive sentence of imprisonment on the petitioner, a woman. Leniency
can be shown on the question of sentence, but subject to the compulsion of
ensuring adequate and just compensation to the victim/complainant, who
has been compelled to wait from 1999 and to fight three rounds of legal
Crl.R.P.No. 3216 of 2006 4
battle for the redressal of his genuine grievances. It is admitted that no
civil suit has been filed and no payment has been effected after the
commencement of the prosecution. The challenge can succeed only
regarding the sentence imposed. Leniency can be shown by appropriate
modification of the substantive sentence of imprisonment along with an
appropriate direction for payment of compensation coupled with an
appropriately deterrent default sentence.
9. 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,
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.6,35,000/-
(Rupees six lakhs thirty five thousand only) in all as compensation and in
default to undergo S.I. for a period of three months. If realised the entire
Crl.R.P.No. 3216 of 2006 5
amount shall be released to the complainant.
10. The petitioner shall appear before the learned Magistrate on or
before 30.12.2006 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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