IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 Crl.Rev.Pet.No. 80 of 2008() ---------------------------- CRA.362/2003 of ADDL. SESSIONS COURT-II, MAVELIKKARA CC.158/2000 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- SOMAN, AGED 50 YEARS, S/O.KARUNAKARAN, KOYIPPALLIL HOUSE, PATHIYOOR PADINJARE MURI, PATHIYOOR VILLAGE, KAYAMKULAM VILLAGE. BY ADV. SRI.G.PRIYADARSAN THAMPI RESPONDENTS: RESPONDENTS/COMPLAINANT AND STATE ---------------------------------------------- 1. PANKAJAKSHAN, S/O.VASU, KALLOORKARAZHMAYIL, PATHIYOOR PADINJARE MURI, PATHIYOOR VILLAGE, KAYAMKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.80 of 2008 ---------------------------------------- Dated this the 30th day of January 2008 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 Negotiable Instruments Act. The cheque is for an amount of Rs.50,000/-. It bears the date 04/01/2000. The petitioner now faces a sentence of S.I for a period of four months and there is a direction to pay the actual cheque amount as compensation and in default to undergo S.I for a period of two months. 2. The signature in the cheque was denied. Transaction between the complainant and the petitioner was also denied. Notice of demand though duly received and acknowledged did not admittedly evoke any response. No satisfactory explanation is offered for such silence. The short contention raised in the course of the trial was that the cheque was stolen from his possession and was misused by the complainant. The complainant examined PWs 1 to 3 and proved Exts.P1 to P4. Exts.X1 to X4 was also marked. The accused did not adduce any defence evidence. Crl.R.P.No.80/2008 2 3. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Section 138 of the N.I Act. Notwithstanding the variation in the signatures in the cheque and other admitted signatures, the courts below came to the conclusion that the execution of the cheque by the complainant stands satisfactorily established. Accordingly they proceeded to pass the impugned concurrent judgments. 4. Called upon to explain the nature of the 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. The short prayer is that leniency may be shown on the question of sentence. 5. Having gone through the impugned concurrent judgments, I reckon that as an informed and fair stand taken by the learned counsel for the petitioner. The verdict of guilty and conviction are found to be absolutely justified and unexceptionable. In the absence of challenge on any specific grounds, it is not necessary for me to advert to facts in any greater detail in this order. Crl.R.P.No.80/2008 3 6. Coming to the question of sentence, 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 vs.Shammi [2002(3)KLT 852]. In the facts and circumstances of the case, I find no compelling reasons which can persuade this court to insist on imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown to the petitioner but subject only to the compulsion of adequately and fairly compensating the victim who has now been compelled to fight two rounds of legal battle and to wait from 04/01/2000 for the redressal of his grievances. The challenge can succeed only to the above extent. 7. 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. 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. c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the Crl.R.P.No.80/2008 4 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.65,000/- (Rupees sixty 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 as compensation. 9. The petitioner shall have time till 15/03/2008 to raise and make the payment and thus avoid the default sentence. The impugned sentence shall not be executed till that date. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 17/03/2008 to serve the modified sentence hereby imposed. If the petitioner does not so appear before the learned Magistrate on or before 17/03/2008, the learned Magistrate shall thereafter proceed to execute the modified sentence hereby imposed. (R.BASANT, JUDGE) jsr Crl.R.P.No.80/2008 5 Crl.R.P.No.80/2008 6 R.BASANT, J Crl.M.A.Nos.21 & 65 of 2008 in Crl.R.P.No.765 of 2007 ORDER 17th DAY OF JANUARY 2008