IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2908 of 2006()
1. DINESAN SON OF PADMANABHAN
... Petitioner
Vs
1. V.C.JAMES
... Respondent
For Petitioner :SRI.T.R.HARIKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :23/08/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 2908 of 2006
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Dated this the 23rd day of August, 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. 2,00,000/-. It bears
the date 10.9.1999. The petitioner now faces a sentence of S.I. for a
period of three months. There is also a direction to pay an
amount of Rs. 2,05,000/- as compensation and in default to undergo
S.I. for a further period of three 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 a witness to the transaction as PW2. Exts.P1 to P8 were
marked. The accused, in the course of the trial, attempted to advance
a contention that the real transaction was for a much lesser amount
Crl.R.P.No. 2908 of 2006 2
of Rs.40,000/- and that the cheque was not issued for the due discharge of
any legally enforcible debt/liability, but was issued only as a blank signed
cheque and as security for the said transaction of Rs.40,000/-
Significantly no evidence whatsoever was adduced by the accused.
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 only reiterates the contention which was
raised before the courts below. No other contentions are raised on merits.
I find absolutely no merit in this contention. The evidence of PWs. 1 and 2
read along with the admitted signature appearing on the cheque and the
improbable conduct of the petitioner remaining silent/inactive on receipt of
the notice of demand threatening criminal prosecution are eminently
satisfactory and sufficient to prove execution and handing over of the
cheque. Once that is proved, the presumption under Section 139 of the N.I.
Crl.R.P.No. 2908 of 2006 3
Act comes into play and absolutely no worthwhile attempt has been made
to
discharge that burden. The challenge raised on merits must, in these
circumstances, fail.
6. The learned counsel for the petitioner prays that leniency may be
shown on 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 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 1999 and to
fight two rounds of legal battle for the redressal of his genuine 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.
Crl.R.P.No. 2908 of 2006 4
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.
) 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.2,25,000/-
(Rupees two lakhs twenty five 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.
9. The petitioner shall appear before the learned Magistrate on or
before 31.10.2006 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.
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(R. BASANT)
Judge
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