IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2810 of 2006()
1. PRAKASH, ANEESH BUNGALOW,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. GEETHA SATHYANANDAN,
For Petitioner :SRI.R.REJI
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :23/08/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 2810 of 2006
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Dated this the 23rd 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. 4.75 Lakhs. It bears
the date 30.3.2003. The petitioner now faces a sentence of S.I. for a
period of six months and to pay the actual cheque amount of Rs.4.75
lakhs as compensation and in default to undergo S.I. for a further
period of two months.
3. The signature in the cheque is admitted. The notice of
demand was duly received and acknowledged. It did not succeed in
securing any payment. Instead, Ext. P6 reply notice was issued
denying the liability. The complainant examined herself as PW1
and proved Exts.P1 to P6. The accused examined his brother-in-
law as DW1. No documents were proved. An attempt was made by
Crl.R.P.No. 2810 of 2006 2
the accused in Ext.P6 reply and in the course of the trial to contend that a
cheque book containing 10 leaves, all signed and blank, were lost by him
from his possession. The complainant must have come into possession of
the signed blank cheque leaves which he was misutilising to stake a false
claim, it was contended.
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
and the petitioner/accused has not succeeded in showing his defence to be
probable. Accordingly the courts below 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. Having gone through the impugned concurrent
judgments, I reckon that 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. In the absence of
Crl.R.P.No. 2810 of 2006 3
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.
5. The learned counsel for the petitioner then prays that leniency
may be shown on 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 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 for a period of about 3 = years and to fight two rounds
of legal battle for the redressal of her genuine grievances. 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 to the respondent.
Crl.R.P.No. 2810 of 2006 4
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,
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.5,05,000/-
(Rupees five lakhs five thousand only) as 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.
8. The petitioner shall appear before the learned Magistrate on or
before 31.10.2006 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.
Crl.R.P.No. 2810 of 2006 5
(R. BASANT)
Judge
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