Prakasan vs Emmannuel Sarees on 4 July, 2006

Kerala High Court
Prakasan vs Emmannuel Sarees on 4 July, 2006




Crl Rev Pet No. 2321 of 2006()

                      ...  Petitioner


                       ...       Respondent


                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

Crl.R.P.No. 2321 of 2006 2

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

greater detail.

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




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