IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3723 of 2006()
1. STEEVI.K., S/O.OUSEPH,
... Petitioner
Vs
1. SAJEEV N.V., S/O.VELAYUDHAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.RAJESH VIJAYAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :23/03/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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Crl.R.P.No.3723 of 2006
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Dated: 23rd March, 2009
ORDER
The revision is directed against the concurrent verdict of guilty
against the accused for the offence punishable under Section 138 of
the Negotiable Instruments Act (for short ‘the Act’). Negativing the
plea of not guilty of the accused, the learned Magistrate, after trial,
found him guilty of the offence, and he was thereupon convicted and
sentenced to undergo simple imprisonment for three months and to
pay a fine of Rs.1000/-. He was also directed to pay compensation of
Rs.1,25,000/- to the complainant under Section 357(3) of the Cr.P.C.
with default term of simple imprisonment for 45 days. In the appeal
preferred by the accused, the learned Sessions Judge upholding the
conviction modified the sentence reducing the imprisonment to
15 days and enhancing the compensation to Rs.1,75,000/- with
default term of simple imprisonment for three months. Fine of
Rs.1,000/- imposed was also set aside. Questioning the legality,
propriety and correctness of the sentence as indicated above, the
accused has preferred this revision.
2. The case of the complainant is that towards discharge of a
debt, the accused issued Ext.P1 cheque for a sum of Rs.1,25,000/-
Crl.R.P.No.3723/06 – 2 –
promising its encashment on presentation in due course. The cheque
presented, however, was dishonoured due to insufficiency of funds in
the account of the accused. Statutory notice issued intimating
dishonour and demanding the sum covered by the cheque was
acknowledged, but no reply was sent nor any payment made. The
complainant, thereupon, launched the prosecution against the
accused for the offence under Section 138 of the Act.
3. The accused pleaded not guilty when particulars of the
offence were made known. The complainant examined himself as
P.W.1 and got marked Exts.P1 to P5 to prove his case. The accused
reiterated his plea of innocence when questioned under Section 313
Cr.P.C. No defence evidence was adduced.
4. I heard the learned counsel for the revision petitioner-
accused. The accused had set up a defence case that the cheque was
issued as a security and the transaction was under an agreement
entered between the parties. The agreement was not produced and
the prosecution was initiated on the basis of security covered by
Ext.P1 cheque, is the submission of the learned counsel. Perusing the
records of the case, I find there is no merit in the submission of the
counsel. Though the accused had set up a defence that the cheque
Crl.R.P.No.3723/06 – 3 –
was issued only as a security and whatever transaction between the
complainant and the accused was under a written agreement, leave
alone any evidence not even any worthmentioning circumstance was
brought in to substantiate that case. The learned Magistrate who had
the opportunity to watch the demeanour and deportment of the
complainant while he was examined, found his testimony reliable,
convincing and trustworthy. It is also pertinent to take note that the
accused who had been intimated of the dishonour of the cheque with
demand for payment to avoid prosecution, after acknowledging the
notice did not even send a reply. The defence canvassed by the
accused during trial has to be viewed in the backdrop that no reply
was sent to the notice of dishonour given by the complainant. The
complainant having established his case by cogent and convincing
evidence, there was no escape from the conclusion that the accused
was guilty of the offence imputed. His conviction for the offence
passed by the learned Magistrate, and upheld in appeal by the
learned Sessions Judge, in the proved facts and circumstances of the
case, deserves only to be confirmed. I do so.
5. Now with regard to the sentence imposed against the
accused, the learned counsel for the accused raised a grievance that
Crl.R.P.No.3723/06 – 4 –
in the appeal preferred by the accused against the conviction and
sentence, the Sessions Court had enhanced the sum payable as
compensation, modifying the sentence imposed by the trial court. At
any rate, the compensation of Rs.1,75,000/- awarded by the learned
Sessions Judge for a cheque of Rs.1,25,000/-, the dishonour of the
cheque, which had let the prosecution of the accused, it is submitted,
is highly excessive and unreasonable. The cheque involved in the
present case was issued as early in 2001 and no doubt, the time lag
taken for culmination of the prosecution on its dishonour has to be
taken note of in passing appropriate sentence with regard to the
payment of compensation by the accused. Having regard to the
totality of the facts and circumstances involved in the case, upholding
the conviction passed against the accused, sentence is modified
directing him to undergo imprisonment till the rising of the court and
to pay compensation of Rs.1,50,000/- under Section 357(3) of the
Cr.P.C., within two months from the date of this order. If
compensation as fixed above is not paid within the stipulated period,
the accused shall undergo simple imprisonment for two months.
Compensation, if realised, shall be paid to the complainant. The
accused shall appear and his sureties shall produce him on 8.6.2009
Crl.R.P.No.3723/06 – 5 –
before the Judicial First Class Magistrate Court, Perumbavoor, and the
learned Magistrate shall execute the sentence as directed.
The revision is partly allowed.
srd S.S. SATHEESACHANDRAN, JUDGE