IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl Rev Pet No. 545 of 2005() 1. N.A.SUBAIR, SUDHEER AND COMPANY, ... Petitioner Vs 1. BRIJITH MATHEW, ... Respondent 2. STATE OF KERALA, REP. BY THE For Petitioner :SRI.B.RAMACHANDRAN For Respondent :SRI.V.K.GOPALAKRISHNA PILLAI The Hon'ble MR. Justice R.BASANT Dated :18/09/2006 O R D E R R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.Nos. 545 of 2005 & 2634, 2637 & 2639 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of September, 2006 O R D E R
These revision petitions are directed against concurrent
verdicts of guilty, conviction and sentence in four prosecutions
against the same parties for the offence punishable under Section
138 of the N.I. Act.
2. As agreed by the rival contestants, I am proceeding to
dispose of all the four revision petitions by a common order.
3. These prosecutions relate to four different cheques issued
by the petitioner herein to the complainant, each for an amount of
Rs. 36,133/-. The petitioner/accused now faces a sentence of S.I.
for a period of one month and to pay an amount of Rs. 36,133/- as
compensation and in default to undergo S.I. for a further period of
two months in Crl.R.P. 545 of 2005. In all the other three cases,
which are coming up for admission, the petitioner faces a sentence of
S.I. for a period of two months and to pay an amount of Rs.37,000/-
Crl.R.P.Nos. 545 of 2005, &
2634, 2637 & 2639 of 2006
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each as compensation and in default to undergo S.I. for a period of one
month each.
4. The signatures in the four cheques are not disputed. The
notices of demand, though duly received and acknowledged, did not
admittedly evoke any response. A witness was examined on the side of
the complainant in all the four cases and relevant documents were marked.
The accused attempted to advance a contention that the cheques were not
issued for the due discharge of any legally enforcible debt/liability.
5. 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
in all the four prosecutions. Accordingly they proceeded to pass the
impugned concurrent judgments.
6. 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 verdicts of
Crl.R.P.Nos. 545 of 2005, &
2634, 2637 & 2639 of 2006
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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.
7. Having gone through the impugned concurrent judgments in all
the four prosecutions, I reckon that as an informed and fair stand taken by
the learned counsel for the petitioner. In the total absence of challenge on
any specific ground against the verdicts 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 common order. I am satisfied that the verdicts of guilty and
conviction are absolutely justified and unexceptionable.
8. 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
Crl.R.P.Nos. 545 of 2005, &
2634, 2637 & 2639 of 2006
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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 2001 (all the four cheques are dated
February and sMarch, 2001) and to fight three rounds of legal battle for the
redressal of his genuine grievances. The challenge can succeed only to
the above extent.
9. In the result:
(a) These revision petitions are allowed in part.
(b) The impugned verdicts of guilty and conviction of the petitioner
in all the four prosecutions 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 in all the four prosecutions to undergo imprisonment till
Crl.R.P.Nos. 545 of 2005, &
2634, 2637 & 2639 of 2006
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rising of court. He is further directed under Section 357(3) Cr.P.C. to pay
an amount of Rs.45,000/-(Rupees forty five thousand only) each as
compensation and in default to undergo S.I. for a period of 45 days each.
If realised the entire amount shall be released to the complainant.
10. The petitioner shall appear before the learned Magistrate on or
before 30.11.2006 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
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