IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3043 of 2006()
1. ZACHARIA KURIAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. JOHN V GEORGE,
For Petitioner :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :18/09/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 3043 of 2006
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Dated this the 18th day of September, 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. 35,000/-. It bears the
date 6.11.2002. The petitioner now faces a sentence of S.I. for a
period of three months. There is also a direction to pay the actual
cheque amount of Rs. 35,000/- as compensation and in default to
undergo S.I. for a further period of two months.
3. The signature in the cheque is admitted. The notice of
demand, though duly received and acknowledged, did not
admittedly evoke any response. The complainant examined himself
as PW1 and proved Exts.P1 to P6. The accused, in the course of
cross examination of PW1, attempted to advance a contention that
the cheque was not issued for the due discharge of any legally
Crl.R.P.No. 3043 of 2006 2
enforcible debt/liability, but was issued as security. The actual
liability had been discharged also without voucher, it was further attempted
to be contended.
4. 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.
5. 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 and some time may be granted to the
petitioner to discharge the liability and avoid the default sentence.
6. 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
Crl.R.P.No. 3043 of 2006 3
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.
7. 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. 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 2002 and to fight two rounds of legal
battle for the redressal of his genuine grievances. The challenge can
succeed only to the above extent.
8. In the nature of the relief which I propose to grant, it is not
necessary to wait for issue and return of notice to the respondent.
9. In the result:
Crl.R.P.No. 3043 of 2006 4
(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.45,000/-
(Rupees forty five thousand only) 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.
9. The petitioner shall appear before the learned Magistrate on or
before 30.11.2006 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.
Crl.R.P.No. 3043 of 2006 5
(R. BASANT)
Judge
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