IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2872 of 2006()
1. P.SURENDRAN NAIR, ULLAS,
... Petitioner
2. R.USHA S.NAIR,
Vs
1. V.SREEKANTHAN NAIR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.C.V.BIMAL ROY
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :25/09/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 2872 of 2006
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Dated this the 25th day of September, 2006
O R D E R
This revision petition is filed by the petitioners, a couple, to
challenge 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. 2,00,000/-. It bears
the date 4.9.1999. The petitioners now face a sentence of S.I. for a
period of six months each. There is also a direction to pay an amount
of Rs.2,00,000/- as compensation under Section 357(3) Cr.P.C. It is
directed to be a joint and several liability, which the petitioners have
to discharge. There is a further direction to pay an amount of
Rs.1,000/- as cost under Section 359 Cr.P.C. and in default to
undergo S.I. for a period of 30 days.
3. It is a joint account maintained by the petitioners. Their
signatures in the cheque is admitted. The notice of demand was
returned unclaimed. The complainant examined himself as PW1
Crl.R.P.No. 2872 of 2006 2
and a witness as PW2. Exts.P1 to P12 were marked. A neighbour was
examined as DW1.
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
petitioners wants to mount against the impugned concurrent judgments, the
learned counsel for the petitioners does not strain to assail the verdict of
guilty and conviction on merits. He only prays that leniency may be
shown on the question of sentence. The petitioners are willing to pay the
amount shown in the cheque. Reasonable further time may be granted to
the petitioners to discharge the liability and avoid any default sentence.
6. Having gone through the impugned concurrent judgments, I
reckon that as an informed and fair stand taken by the learned counsel for
the petitioners. 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. I am
Crl.R.P.No. 2872 of 2006 3
satisfied that the verdict of guilty and conviction are absolutely justified and
unexceptionable.
7. 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
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 petitioners. 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 1999 and to fight two rounds of legal
battle for the redressal of his genuine grievances. The challenge can
succeed only to the above extent.
8. In the nature of the relief which I propose to grant, it is not
necessary to wait for issue and return of notice to the respondent.
9. In the result:
Crl.R.P.No. 2872 of 2006 4
(a) This revision petition is allowed in part.
(b) The impugned verdict of guilty and conviction of the petitioners
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 petitioners by the courts
below, they are sentenced to undergo imprisonment till rising of court.
They are further directed under Section 357(3) Cr.P.C. to pay an amount
of Rs.1,15,000/-(Rupees One lakh fifteen thousand only) each 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.
9. The petitioners 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 petitioners do not so
appear, the learned Magistrate shall thereafter proceed to take necessary
steps to execute the modified sentence hereby imposed.
Crl.R.P.No. 2872 of 2006 5
(R. BASANT)
Judge
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