IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3294 of 2006()
1. S. SUBRAMANIAN, S/O.GOVINDAN NAMBOODIRI,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. K. SATHYAN, S/O.RAGHAVAN,
For Petitioner :SRI.BINOY VASUDEVAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :20/09/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 3294 of 2006
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Dated this the 20th day of September, 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 2.2.2001. The petitioner now faces a sentence of S.I. for a
period of three months. There is also a direction to pay the actual
cheque amount as compensation and in default to undergo S.I. for a
further period of three months.
3. The signature in the cheque is admitted. The notice of
demand, though duly received and acknowledged, did not evoke any
response. The complainant examined himself as PW1 and proved
Exts.P1 to P4. The accused examined his wife as DW1. At the
stage of the trial, he attempted to advance a defence that the cheque
was issued as a blank signed cheque as security to another person.
Crl.R.P.No. 3294 of 2006 2
Though it was offered to examine that person as a witness, he was not
examined.
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
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. He only prays that leniency may be
shown on the question of sentence and some time may be granted to the
petitioner to discharge the liability and avoid the 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 petitioner. 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
satisfied that the verdict of guilty and conviction are absolutely justified and
Crl.R.P.No. 3294 of 2006 3
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 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 from 2001 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:
(a) This revision petition is allowed in part.
(b) The impugned verdict of guilty and conviction of the petitioner
Crl.R.P.No. 3294 of 2006 4
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.50,000/-
(Rupees fifty thousand only) 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 petitioner 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 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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