IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2577 of 2006()
1. M.MAMU KOYA, S/O. KUNHIPERY,
... Petitioner
Vs
1. SREEDHARAN, S/O. GOPALAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.R.BINDU (SASTHAMANGALAM)
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :28/07/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 2577 of 2006
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Dated this the 28th day of July, 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. 25,000/- It bears
the date 4.4.2002. The appellate court modified the sentence and
the petitioner now faces a sentence of S.I. for one month and to pay
an amount of Rs.25,000/- as compensation and in default to undergo
S.I. for a period of two months.
3. The signature in the cheque is admitted. That it was
signed and handed over by the petitioner is also admitted. The
notice of demand was returned unclaimed. The complainant
examined PW1 and Exts.P1 to P6 were marked. No defence
evidence whatsoever was adduced. In the course of the trial the
accused advanced a contention that the cheque was not issued to
Crl.R.P.No. 2577 of 2006 2
the complainant or for the discharge of any legally enforcible debt/liability,
but was issued as a signed blank cheque as security to one Abdurahiman.
The complainant in collusion with the said Abdurahiman is trying to
stake a totally false claim on the basis of the said cheque, it is argued.
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 does not strain to challenge the verdict of
guilty and conviction on merits. He only prays that leniency may be
shown on the question of sentence. I reckon that as an informed and fair
stand taken by the petitioner. I am satisfied that the verdict of guilty and
conviction are absolutely justified and unexceptionable. 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 the
facts in any greater detail in this order.
Crl.R.P.No. 2577 of 2006 3
6. I now come 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 v. Shammy
(2002 (3) KLT 852). I do not find 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 the petitioner should do justice to the complainant and
ensure that the complainant is adequately compensated. Subject to the
requirement of incorporating the component of reparation of the victim,
the sentence/direction can be suitably modified and leniency can be shown.
The challenge can succeed only to the above extent.
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.
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
Crl.R.P.No. 2577 of 2006 4
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.32,500/- 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 16.9.2006 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
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