IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 164 of 2008()
1. G.RAJU
... Petitioner
Vs
1. A.DIVAKARAN
... Respondent
For Petitioner :SRI.PRADEEP JOY
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. 164 of 2007
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Dated this the 24th 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, after the indulgent
modification of the sentence by the appellate court, now faces the
sentence of S.I. for a period of one month. There is a further
direction to pay an amount of Rs.20,000/- as compensation
under Section 357(3) Cr.P.C. and in default to undergo S.I. for a
period of three months.
2. The cheque is for an amount of Rs.18,400/- It bears the
date 29.5.2000. Signature in the cheque is admitted. Handing
over of the cheque to the complainant is also admitted. That the
cheque is dishonoured on the ground of insufficiency of funds
and the complainant had followed the statutory procedure and
time table is not denied. The notice of demand was duly received
and acknowledged, but it did not evoke any response. The
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accused took up a plea that the cheque was issued as security for the
due discharge of a liability. According to him, it was handed over as a
blank signed cheque when a hire purchase agreement was entered into.
The complainant’s case was also that the cheque was issued for the
discharge of a liability which was outstanding in the said hire purchase
transaction. No defence evidence whatsoever was adduced.
3. 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.
4. The petitioner claims to be aggrieved by the impugned
concurrent judgments. 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 leniency may be shown on the question of
sentence. The substantive sentence of imprisonment may be modified
and reduced. Appropriate direction for payment of compensation may
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be issued and the petitioner may be given some further time to raise
the amount, pay the same and avoid the default sentence.
5. 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). I am not satisfied
that there are any compelling reasons which would justify or warrant
imposition of any deterrent substantive sentence of imprisonment on
the petitioner. Leniency can be shown on the question of sentence, but
subject only to the compulsion of ensuring that the complainant, who
has been compelled to wait from 2000 and to fight two rounds of legal
battle for the redressal of his grievances is adequately compensated.
I do also take note of the fact that I condone the delay of 363 days
without notice to the complainant and without imposing any cost on
the petitioner with the observation that appropriate provision shall be
made when the revision is disposed of.
6. In the nature of the relief which I propose to grant, it is not
necessary to wait for issue and return of notice on the respondent.
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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.
) 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.23,400/- as compensation and in default to undergo S.I. for a
period of three months.
8. The petitioner shall have time till 29.2.2008 to pay the
amount and avoid the default sentence. The modified sentence shall not
be executed till that date. On or before 1.3.2008 the petitioner shall
appear, and his sureties shall produce him, before the learned
Magistrate for execution of the sentence.
(R. BASANT)
Judge
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