IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 9 of 2008()
1. KUNJAPPAN, SON OF GOVINDAN,
... Petitioner
Vs
1. K.M.RAJU, KONDOOKKALAYIL HOUSE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.V.G.ARUN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :03/01/2008
O R D E R
R. BASANT, J.
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Crl.R.P.No. 9 of 2008
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Dated this the 3rd 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 now faces a sentence
of S.I. for a period of one year and to pay the actual cheque
amount of Rs. 2,97,000/- as compensation and in default to
undergo S.I. for a further period of three months.
2. The transaction is admitted. The signature in the
cheque is admitted. Handing over of the cheque is not disputed.
The notice of demand, though duly received and acknowledged,
did not admittedly evoke any response. No defence evidence
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
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2
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 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. He only prays that
leniency may be shown on the question of sentence and some time may
be granted to the petitioner to discharge the liability and 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. I am satisfied that the verdict of guilty and
conviction are absolutely justified.
6. Coming to the question of sentence, 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).
In the facts and circumstances of the case, I do not find any
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compelling reasons which can persuade this court to insist on
imposition of any deterrent substantive sentence of imprisonment on
the petitioner. At the same time justice must be shown to the
complainant also. The cheque for an amount of Rs. 2.97 lakhs is
dated 7.8.2003. The complainant has been compelled by now to fight
two rounds of legal battle and to wait for about 4 = years. Payment
has still not been made to him. No civil action is initiated against the
accused also, it is submitted. I am satisfied that a substantive
sentence of imprisonment till rising of court and an appropriate
direction for payment of compensation shall eminently meet the ends
of justice.
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.
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) 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.3,25,000/-(Rupees three lakhs twenty five thousand only) as
compensation and in default to undergo S.I. for a period of three
months.
The modified sentence against the petitioner shall not be
executed till 29.2.2008. On or before 1.3.2008 the petitioner shall
appear and the sureties shall produce him before the learned
Magistrate to undergo the modified sentence hereby imposed.
(R. BASANT)
Judge
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