IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 Crl.Rev.Pet.No. 239 of 2008() ----------------------------- CRA.264/2007 of ADDL. SESSIONS COURT, ALAPPUZHA CC.1121/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- MANOJ KUMAR, AGED 33 YEARS, S/O. GOPALAKRISHNAN NAIR, BHARGAVI MANDIRAM, KUTHIATHODU P.O., CHERTHALA. BY ADV. SRI.T.RAJESH SRI.P.BINNY JOSEPH RESPONDENTS: RESPONDENTS/COMPLAINANT ------------------------------------ 1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. N.N.MOHANAN, NADIPPARAMBIL, ULEVAIPPU P.O., POOCHACKAL, CHERTHALA. BY PUBLIC PROSECUTOR ADV.SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` Crl. R.P. No. 239 OF 2008 ```````````````````````````````````````````````````` Dated this the 1st day of February, 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 N.I Act. The cheque is for an amount of Rs.25,000/-. It bears the date 1.8.2005. The petitioner now faces a sentence of simple imprisonment for a period of three months and to pay an amount of Rs.25,000/- as compensation and in default to undergo simple imprisonment for a period of two months. 2. Signature in the cheque is admitted. That the cheque was handed over to the complainant is also not disputed. Notice of demand though duly received and acknowledged, did not admittedly evoke any response. The accused did not adduce any defence evidence also. A contention was raised in the course of the trial that the Crl.R.P.No.239/08 : 2 : cheque was not issued to the complainant for the due discharge of any legally enforcible debt or liability but it was issued only as a security to the complainant when transactions for a lesser amount was entered into. It was also contended that the said liability has been discharged in full but the cheque was retained by the complainant. 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. 4. The petitioner claims to be aggrieved by the impugned concurrent judgments. 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. The learned counsel only Crl.R.P.No.239/08 : 3 : prays that leniency may be shown on the question of sentence. Having gone through the impugned concurrent judgments, I am satisfied that, that is an informed and fair stand taken by the learned counsel for the petitioner. The impugned verdict of guilty and conviction are found to be absolutely reasonable and unexceptionable. 5. 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 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 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. He deserves to be compensated Crl.R.P.No.239/08 : 4 : satisfactorily. 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. 7. 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, he is sentenced to undergo imprisonment till rising of court. He is further directed to pay an amount of Rs.30,000/- (Rupees thirty thousand only) as compensation under Section 357(3) Cr.P.C. and in default to undergo simple imprisonment for a period of three months. 8. The petitioner shall have time till 31.3.08 to comply Crl.R.P.No.239/08 : 5 : with the directions for payment of compensation. This modified sentence shall not be executed till that day. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 1.4.08 for execution of the sentence. (R.BASANT, JUDGE) aks