IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 Crl.Rev.Pet.No. 574 of 2001() ----------------------------- CRL.APPEAL NO.175/1999 OF SESSIONS COURT, KASARAGOD IN C.C.NO.272/96 OF CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD REVN. PETITIONER: APPELLANT/ACCUSED --------------------- K.C.NARAYANAN, S/O.RAMAN, KARAMANTHODY, P.O.KARADKA, MULLERIA, KASARAGOD TALUK. BY ADV. SRI.M.SASINDRAN RESPONDENT:RESPONDENT/COMPLAINANT --------------- 1. PUSHPARAJ.K.V, POWER OF ATTORNEY HOLDER OF M/S.R.K.FINANCE CORPORATION, KASARAGOD. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.574 of 2001 ------------------------------------- Dated this the 16th day of March, 2009 ORDER 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.15,000/-. Signature in the cheque is not admitted. Handing over of the cheque is also not specifically admitted. A suggestion is seen thrown at the complainant's witness-PW1 and in the 313 examination that the cheque was handed over as security when a lesser amount was received from the complainant's establishment, a money lender/financier. 2. Before the Trial Court, PW1-power of attorney holder of the complainant was examined and Exts.P1 to P5 were marked. 3. The courts below 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. Crl.R.P No.574 of 2001 2 4. The petitioner faces a sentence of S.I for a period of 2 months. There is a direction to pay an amount of Rs.19,000/- as fine and in default to undergo S.I for a period of 2 weeks. Out of the fine amount if realised, an amount of Rs.17,000/- was directed to be paid to the complainant as compensation under Section 357(1) Cr.P.C. 5. 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 reiterates the contention that the cheque was not issued for the due discharge of any legally enforcible debt/liability. I have been taken through the deposition of PW1 as also 313 statement of the accused. Though the signature in the cheque is not specifically admitted, the tenor of cross examination is that the cheque was handed over when a loan of Rs.5,000/- was taken. The notice of demand though duly received and acknowledged, did not evoke any response. In the course of 313 examination all that is sought is 2 months' further time to make the payment. No defence evidence whatsoever was adduced. Though the cheque is dishonoured with the statement that signature varies, the version of the accused in the course of cross examination and Crl.R.P No.574 of 2001 3 313 examination clearly suggest that the cheque was actually handed over by the accused to the complainant. The presumption under Section 139 of the Negotiable Instruments Act does also stare at the accused/revision petitioner. 6. I am, in these circumstances, satisfied that there is absolutely no merit in the challenge raised against the impugned verdict of guilt and conviction. I concur with the concurrent conclusion of the courts below that the ingredients of the offence under Section 138 of the Negotiable Instruments Act have been established. 7. Coming to the question of sentence, the counsel submits that a lenient view may be taken and the substantive sentence of imprisonment may be reduced. It is prayed that appropriate direction for payment of compensation may be issued and at any rate the substantive sentence of imprisonment may be avoided. 8. 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 reported in Anilkumar v. Shammi [2002 (3) KLT 852]. I am satisfied that there are no compelling reasons which can persuade this Court to insist on Crl.R.P No.574 of 2001 4 imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown on the question of sentence, but subject only to the compulsion of ensuring adequate and just compensation for the victim/complainant, who has been compelled to fight a legal battle before 3 courts from 1996 for the redressal of his grievances. He deserves to be compensated satisfactorily. The challenge can succeed only to the above extent. 9. In the result: a) This Crl.R.P 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 courts below, the revision petitioner is sentenced to pay an amount of Rs.26,000/- (Rupees Twenty six thousand only) as fine and in default to undergo S.I for a period of 2 months. Out of the fine amount, if realised, an amount of Rs.25,000/- (Rupees Twenty five thousand only) shall be paid to the complainant as compensation under Section 357(1) Cr.P.C. I make it clear that if the revision petitioner produces voucher to the effect that the Crl.R.P No.574 of 2001 5 compensation amount has been directly paid to the complainant and the learned Magistrate is satisfied about such payment, deposit of the said amount of Rs.25,000/- in court need not be insisted and the default sentence in that event need not be executed if the balance amount of Rs.1,000/- (Rupees One thousand only) is deposited before court. 10. The petitioner shall have time till 30.04.09 to comply with the modified sentence hereby imposed. He shall appear before the learned Magistrate on 02.05.09 for execution of the modified sentence hereby imposed. (R.BASANT, JUDGE) rtr/-