IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2739 of 2006()
1. N.P.CHITHRABHANU
... Petitioner
Vs
1. G.ANIL KUMAR
... Respondent
For Petitioner :SRI.K.REGHU KOTTAPPURAM
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :09/08/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 2739 of 2006
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Dated this the 9th day of August, 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. 40,000/- It bears the
date 15.10.1998. The signature in the cheque is admitted. The
notice of demand, though despatched by registered post in the
correct address, was not served and was returned unclaimed. The
complainant examined himself as PW1. Exts.P1 to P7 were marked.
The accused, in the course of trial, took up a defence that the
cheque was not issued for the discharge of any legally enforcible
debt/liability, but was issued to DW1 as security. It was contended
that the accused does not know how the cheque reached the hands of
the complainant from DW1. The accused examined DW1. But
DW1 did not support the case of the accused.
Crl.R.P.No. 2739 of 2006 2
3. 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.
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. The counsel only prays that leniency may
be shown on the question of sentence. 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 and
unexceptionable.
5. Coming to the question of sentence, the petitioner now faces a
sentence of S.I. for for a period of two weeks and to pay an amount of
Rs.41,000/- as compensation and in default to undergo S.I. for a period of
one month. 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
Crl.R.P.No. 2739 of 2006 3
(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. It will have to be zealously ensured
that the complainant, who has been compelled to wait from October, 1998
and to fight two rounds of legal battle for the redressal of his genuine
grievances is adequately compensated. Subject to the requirement of
accommodating the component of adequate reparation of the victim,
leniency can be shown and reasonable further time can be granted to the
petitioner. 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
supersession of the sentence imposed on the petitioner by the courts below,
Crl.R.P.No. 2739 of 2006 4
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. 47,500/- (Rupees forty seven thousand five hundred only) as
compensation and in default to undergo S.I. for a period of one month. If
realised the entire amount shall be released to the complainant.
8. The petitioner shall appear before the learned Magistrate on or
before 16.10.2006 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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