IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3197 of 2006()
1. JOSEPH MATHEW, AGED 35, S/O.MATHEW,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY
... Respondent
2. V.M.JOSEPH, S/O.MAMMEN,
For Petitioner :SRI.MAURICE VINCENT
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :11/09/2006
O R D E R
R. BASANT, J.
- - - - - - - - - - - - - - - - - - - -
Crl.R.P.No. 3197 of 2006
- - - - - - - - - - - - - - - - - - - -
Dated this the 11th day of September, 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. 60,000/-. It bears the
date 18.4.2002. The petitioner now faces a sentence of S.I. for a
period of six months. There is also a direction to pay an amount
of Rs. 62,000/- 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 proved Exts.P1 to P4. The accused did not adduce
any defence evidence. Except to broadly and vaguely contend that
the cheque was not issued for the due discharge of any legally
Crl.R.P.No. 3197 of 2006 2
enforcible debt/liability, no specific or definite defence was even taken up.
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 the challenge 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. In the absence of challenge on any specific
ground against the verdict of guilty and conviction, I am satisfied that it is
not necessary for me to advert to facts in any greater detail in this order.
I am satisfied that the verdict of guilty and conviction are absolutely
justified and unexceptionable.
5. Coming to the question of sentence, I am satisfied that the
prayer for leniency can be accepted. 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
Crl.R.P.No. 3197 of 2006 3
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 it will have to be zealously ensured that the complainant,
who has been compelled to wait for about four years and to fight two
rounds of unnecessary legal battle for the redressal of his genuine
grievances is adequately and justly compensated. The challenge can
succeed only to the above extent.
6. In the nature of the relief which I propose to grant, I am satisfied
that it is not necessary to wait for issue and return of 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.
) 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.66,000/-
Crl.R.P.No. 3197 of 2006 4
(Rupees sixty six thousand only) as compensation and in default to
undergo S.I. for a period of two months. If realised the entire amount shall
be released to the complainant.
8. The petitioner shall appear before the learned Magistrate on or
before 16.11.2006 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.
(R. BASANT)
Judge
tm
