IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2337 of 2006()
1. M. NAZAR, AGED 45 YEARS,
... Petitioner
Vs
1. A.M. RASHEED, AGED 46 YEARS,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.S.SHANAVAS KHAN
For Respondent :SRI.E.RAFEEK
The Hon'ble MR. Justice R.BASANT
Dated :06/07/2006
O R D E R
R. BASANT, J.
- - - - - - - - - - - - - - - - - - - -
Crl.R.P.No. 2337 of 2006
- - - - - - - - - - - - - - - - - - - -
Dated this the 6th 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. 50,000/- It is dated
10.1.2001. The signature in the cheque is admitted. The notice of
demand was duly received and acknowledged. It evoked in Ext.D1
reply. Before the learned Magistrate, the complainant examined
himself as PW1 and proved Exts.P1 to P5. The accused examined
himself as DW1 and proved Exts.D1 and D1(a). The courts below
concurrently came to the conclusion that all ingredients of the
offence punishable under Section 138 of the N.I. Act have been
established. The courts further came to the conclusion that the
inconsistent defence advanced by the accused in Ext.D1, in the S.313
statement of the accused and in his statement on oath as DW1 cannot
Crl.R.P.No. 2337 of 2006 2
be safely accepted and the accused has not discharged his burden
under Section 139 of the N.I. Act. Accordingly they proceeded to pass
the impugned concurrent judgments.
3. 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. I am satisfied that the verdict of guilty and
conviction are absolutely justified and unexceptionable. In the absence of
challenge on any specific ground before me, I am satisfied that it is not
necessary to advert to facts in any greater detail.
4. The only contention raised by the learned counsel for the
petitioner is that leniency may be shown on the question of sentence and
some time may be granted to pay the amount of compensation. The
petitioner now faces a sentence of S.I. for a period of three months and to
pay the actual cheque amount along with cost of Rs.1,000/- as
compensation/cost. In default he is sentenced to undergo S.I. for a further
period of 3 = months.
Crl.R.P.No. 2337 of 2006 3
5. 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 it has to be
zealously ensured that the complainant, who has been compelled to wait
from 2001 and to fight three rounds of legal battle for the redressal of his
grievance is adequately compensated. Subject to the requirement of
accommodating the component of reparation of the victim, the impugned
sentence can be modified. The challenge succeeds to the above extent.
6. Considering 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. 2337 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.65,000/- as
compensation (including cost) and in default to undergo S.I. for a period of
three months. If realised the entire amount shall be released to the
complainant.
8. The petitioner shall appear before the learned Magistrate on or
before 31.8.2006 to serve the modified sentence hereby imposed. 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