IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 214 of 2008()
1. PHILIP, S/O. GEORGE,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. J.V.J. VARGHESE, S/O.MATHEW VARGHESE,
For Petitioner :SRI.C.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :30/01/2008
O R D E R
R.BASANT, J
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Crl.R.P.No.214 of 2008
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Dated this the 30th 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 cheque is
for an amount of Rs.1,00,000/-. It bears the date 07/12/1998.
After indulgent modification of the sentence by the appellate
court, the petitioner now faces a sentence of S.I for a period of
three months and there is a direction to pay the actual cheque
amount of Rs.1,00,000/- as compensation under Section 357(3)
Cr.P.C and in default to undergo S.I for a period of one month.
2. The signature in the cheque is admitted. Notice of
demand though duly received and acknowledged did not evoke
any response. The accused did not adduce any defence evidence.
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
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which the petitioner wants to mount against the impugned
concurrent judgments, the learned counsel for the petitioner
only prays that leniency may be shown on the question of
sentence. Some further time may be granted to the petitioner to
raise and pay the amount of compensation and thus avoid the
default sentence.
5. Having gone through the impugned concurrent
judgments, I reckon that as an informed and fair stand taken by
the learned counsel for the petitioner. The verdict of guilty and
conviction are found to be 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
Crl.R.P.No.214/2008 3
to fight two rounds of legal battle and to wait from 1998 for the
redressal of his grievances. The challenge can succeed only to
the above extent.
7. 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.
8. 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.1,20,000/- (Rupees one lakh twenty
thousand 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.
9. The petitioner is said to be undergoing imprisonment
now in execution of the sentence imposed. I am satisfied that
subject to appropriate conditions, the petitioner can be given
further time to make the payment and avoid the default
Crl.R.P.No.214/2008 4
sentence. It is hence directed that if the petitioner executes a
bond for Rs.50,000/- (Rupees fifty thousand only) with two
solvent sureties each for the like sum to the satisfaction of the
learned Magistrate and deposits an amount of Rs.25,000/-
(Rupees twenty five thousand only), the petitioner shall be
released from custody forthwith on condition that he shall
appear and his sureties shall produce him before the learned
Magistrate on or before 01/04/2008 for execution of the
sentence. By then, the petitioner can raise and pay the amount
and avoid the default sentence.
Hand over copy of this order to the learned counsel for the
petitioner.
(R.BASANT, JUDGE)
jsr
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Crl.R.P.No.214/2008 6
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