IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 172 of 2008()
1. SUKUMARAN,
... Petitioner
Vs
1. SALIMON P.J.,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.A.K.HARIDAS
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :24/01/2008
O R D E R
R.BASANT, J
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Crl.R.P.No.172 of 2008
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Dated this the 25th 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 Negotiable Instruments Act. The petitioner now faces a
sentence of S.I for a period of one year and there is a direction to
pay an amount of Rs.1,20,000/- as compensation and in default to
undergo S.I for a period of four months.
2. The cheque is for an amount of Rs.1,00,000/-. It bears
the date 08/11/2003. The signature in the cheque is admitted.
Notice of demand did not evoke any response. The accused
examined himself as DW1. The accused took up a contention that
the cheque was issued not to the complainant; but to another
person as security.
3. The courts below concurrently came to the conclusion
that the complainant has succeeded in establishing all the
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 the challenge
which the petitioner wants to mount against the impugned
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concurrent judgments, the learned counsel for the petitioner does
not strain to assail the verdict of guilty and conviction on merits.
He prays that leniency may be shown on the question of sentence
and he may be given some further time to pay the amount of
compensation and avoid the default sentence.
5. Having gone through the impugned concurrent
judgments, I find the verdict of guilty and conviction are absolutely
justified 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.
6. Coming to the question of sentence, 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 vs.Shammi [2002(3)KLT 852]. In the facts and
circumstances of the case, I find no compelling reasons which can
persuade this court to insist on imposition of any deterrent
substantive sentence of imprisonment. Leniency can be shown to
the petitioner but subject only to the compulsion of adequately and
fairly compensating the victim who has now been compelled to
fight two rounds of legal battle and to wait from November 2003
for the redressal of his grievances. The challenge can succeed
only to the above extent. In the nature of the relief which I
propose to grant, it is not necessary to wait for issue and return of
Crl.R.P.No.172/08 3
notice to 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.
c) 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.1,22,000/- (Rupees one lakh twenty two thousand
only) as compensation and in default, to undergo S.I for a period of
four months. If realised, the entire amount shall be released to the
complainant as compensation.
8. The petitioner shall have time till 15/03/2008 to make
the payment. The impugned sentence shall not be executed till
that date. The petitioner shall appear and his sureties shall
produce him before the learned Magistrate on or before
17/03/2008 to serve the modified sentence hereby imposed. If the
petitioner does not so appear before the learned Magistrate on or
before 17/03/2008, the learned Magistrate shall thereafter
proceed to execute the modified sentence hereby imposed.
(R.BASANT, JUDGE)
jsr
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R.BASANT, J
Crl.M.A.Nos.21 & 65 of 2008
in Crl.R.P.No.765 of 2007
ORDER
17th DAY OF JANUARY 2008