Ali Rawther vs Somasekharan Nair on 16 January, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 103 of 2008()


1. ALI RAWTHER, S/O. KAZIM RAWTHER,
                      ...  Petitioner

                        Vs



1. SOMASEKHARAN NAIR,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.M.P.MADHAVANKUTTY

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

 Dated :16/01/2008

 O R D E R
                            R. BASANT, J.

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                      Crl.R.P. No. 103 OF 2008
              ````````````````````````````````````````````````````
             Dated this the 16th day of January, 2008

                                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. The petitioner

now faces a sentence of simple imprisonment for a period of

six months. There is a further direction to pay an amount of

Rs.75,000/- as compensation and in default to undergo simple

imprisonment for a further period of two months.

2. The cheque is for an amount of Rs.1,00,000/-. It

bears the date 27.1.2005. Before the learned Magistrate, the

complainant examined himself as PW1 and proved Exts.P1 to

P11. No defence evidence was adduced. The courts below

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.

Crl.R.P.103/08
: 2 :

3. 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 learned counsel only prays that the sentence

imposed may be modified and reduced.

4. Having gone through the impugned concurrent

judgments, I am satisfied that, that is an informed and fair

stand taken by the learned counsel for the petitioner. The

impugned verdict of guilty and conviction are found to be

absolutely reasonable and unexceptionable. In the absence

of challenge on any specific grounds, it is not necessary for

me to advert to facts in any greater detail in this order.

5. 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 reported in

Anilkumar v. Shammi [2002(3) KLT 852]. I am satisfied that

Crl.R.P.103/08
: 3 :

there are no compelling reasons which can persuade

this Court to insist on imposition of any deterrent substantive

sentence of imprisonment. Leniency can be shown on the

question of sentence, but subject only to the compulsion of

ensuring adequate and just compensation for the

victim/complainant, who has been compelled to fight two

rounds of legal battle by now and to wait from 27.1.05 for the

redressal of his grievances. I am satisfied that there must at

least a direction to pay the actual cheque amount as

compensation and an appropriate default sentence to

adequately compensate the victim on condition that the

deterrent substantive sentence of imprisonment is avoided.

6. In the result:

       a)    This Crl.R.P is allowed in part;

       b)    The impugned concurrent verdict of guilty and

conviction of the petitioner under Section 138 of the N.I Act

are upheld;

c) But the sentence imposed is modified and reduced.

Crl.R.P.103/08
: 4 :

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 to pay the actual cheque

amount of Rs.1,00,000/- (Rupees one lakh only) as

compensation under Section 357(3) Cr.P.C. and in default to

undergo simple imprisonment for a period of three months.

7. The petitioner shall have time till 29.2.08 to comply

with the directions for payment of compensation. This

modified sentence shall not be executed till that day. The

petitioner shall appear and his sureties shall produce him

before the learned Magistrate on or before 1.3.08 for

execution of the sentence.

8. In the nature of the relief which I have chosen to

grant, I am satisfied that it is not necessary to wait for issue

and return of notice to the respondent.

(R.BASANT, JUDGE)
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