N.A.Subair vs Brijith Mathew on 18 September, 2006

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Kerala High Court
N.A.Subair vs Brijith Mathew on 18 September, 2006
       

  

  

 
 
  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
2

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
3

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
4

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
5

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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