IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 301 of 2002()
1. GIGI, S/O.JOSE, AGED 33,
... Petitioner
Vs
1. JOSEPH THOMAS, AGED 45, RESIDING AT
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.C.J.JOY
For Respondent :SRI.M.J.THOMAS
The Hon'ble MR. Justice R.BASANT
Dated :16/03/2009
O R D E R
R.BASANT, J
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Crl.R.P No.301 of 2002
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Dated this the 16th day of March, 2009
ORDER
In this revision petition, the accused assails the 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 6 months. No
direction for payment of fine or compensation is issued.
2. The prosecution relates to 2 cheques, each of
Rs.40,000/- issued by the accused to the complainant.
Signatures in the cheques are admitted. The cheques when
presented were dishonoured by the bank on the ground of
insufficiency of funds. Notice of demand Ext.P5 was duly
despatched and acknowledged under Ext.P6. The same did not
evoke any response. It is, in these circumstances, that the
complainant came to court with a complaint under Section 138
of the Negotiable Instruments Act observing the statutory time
table scrupulously. The complainant examined himself as PW1
and proved Exts.P1 to P11.
3. In the course of cross examination the accused took
up a contention that the cheques were issued not for the due
discharge of a legally enforcible debt/liability. It was contended
Crl.R.P No.301 of 2002 2
that the cheques were stealthily obtained by the complainant
from the accused on the promise that he shall make visa for
employment abroad available to the accused. There was later a
disagreement/dispute between the accused and the complainant
regarding construction of a road. On account of that animosity
the cheques were being misutilised by the complainant to stake a
false claim, it was contended.
4. 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.
5. There is no representation for the revision petitioner.
The learned counsel for the respondent has been heard. I have
been taken through the impugned judgments. I have gone
through the Memorandum of Revision. The verdict of guilty and
conviction are assailed on the ground that the cheques were not
issued for the due discharge of any legally enforcible
debt/liability.
6. The less said about this contention, the better.
Signatures in Exts.P1 and P2 are not disputed. Handing over of
Crl.R.P No.301 of 2002 3
the cheques is also not disputed. We have the oral evidence of
PW1 to explain the circumstance under which Exts.P1 and P2
were received by the complainant. The presumption under
Section 139 of the Negotiable Instruments Act does also stare at
the petitioner/accused. The conduct of the accused of not
responding to Ext.P5 notice corroborates the version of the
complainant convincingly. Though a vague and general plea is
raised that cheques were obtained for the purpose of securing
employment abroad for the accused, there is nothing to
substantiate such a plea. That suggestion thrown at PW1 when
he was facing the cross examination is not even asserted by the
accused in the 313 statement given by him.
7. I do not, in these circumstances, find any merit in the
challenge raised against the verdict of guilty and conviction
under Section 138 of the Negotiable Instruments Act on merits.
The challenge on merit must hence fail.
8. There is a contention that the sentence imposed is
excessive. The prosecution is under Section 138 of the
Negotiable Instruments Act. Cheques are for a total amount of
Rs.80,000/-. Cheques were issued as early as in 1996. I have
already adverted to the principles governing imposition of
Crl.R.P No.301 of 2002 4
sentence in a prosecution under Section 138 of the N.I.Act in the
decision in Anilkumar vs.Shammi [2002(3)KLT 852]. I am
satisfied that leniency can be shown on the question of sentence
after zealously ensuring that the complainant who has been
compelled to fight three rounds of legal battle and wait from
1996 is adequately compensated.
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.
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.1,00,000/- (Rupees one lakh only) as
compensation and in default, to undergo S.I for a period of three
months. If realised, the entire amount shall be released to the
complainant as compensation.
10. The petitioner shall have time till 30/04/2009 to make
the payment. The impugned sentence shall not be executed till
that date. The petitioner shall appear and his sureties shall
Crl.R.P No.301 of 2002 5
produce him before the learned Magistrate on or before
02/05/2009 to serve the modified sentence hereby imposed.
(R.BASANT, JUDGE)