IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl Rev Pet No. 2321 of 2006() 1. PRAKASAN, ... Petitioner Vs 1. EMMANNUEL SAREES, JAI HIND BUILDING, ... Respondent 2. THE STATE OF KERALA REPRESENTED BY For Petitioner :SRI.JIJO PAUL For Respondent : No Appearance The Hon'ble MR. Justice R.BASANT Dated :04/07/2006 O R D E R R. BASANT, J. - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 2321 of 2006 - - - - - - - - - - - - - - - - - - - - Dated this the 4th 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 petitioner now faces S.I. for one month. There is also a
direction to pay the cheque amount less the amount of Rs.1,000/-
admittedly paid, as compensation under Section 357(3) Cr.P.C.,
coupled with a default sentence of S.I. for three months.
3. The cheque is for an amount of Rs. 35,259/- The
signature in the cheque is admitted. Handing over of the cheque is
also admitted. The notice of demand, duly received and
acknowledged, succeeded in evoking only Ext.P7 letter, under
which an amount of Rs.1,000/- was paid towards the liability.
Before the learned Magistrate the complainant examined PW1 and
proved Exts.P1 to P9. In the course of trial a contention was raised
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that the cheque was issued not for the discharge of any legally enforcible
debt/liability. The accused examined himself as DW1. No documentary
evidence was adduced. 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. 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 challenge the verdict of
guilty and conviction. The counsel prays that leniency may be shown on
the question of sentence.
5. I have gone through the impugned judgments. 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
6. Coming to the question of sentence, I have already adverted to
the principles governing imposition of sentence in a prosecution under
Crl.R.P.No. 2321 of 2006 3
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 two rounds of legal battle for the redressal of his grievance is
adequately compensated. The challenge succeeds to the above extent.
7. 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.
8. 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,
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.42,500/- as
Crl.R.P.No. 2321 of 2006 4
compensation and in default to undergo S.I. for a period of three months.
If realised the entire amount shall be released to the complainant.
9. The petitioner shall appear before the learned Magistrate on or
before 7.8.2006 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