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. 223 of 2008() ----------------------------- CRA.199/2004 of I ADDL. SESSIONS COURT, KOLLAM CC.425/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... REVN. PETITIONER: APPELLANT/ACCUSED ------------------ ALEX MATHEW, S/O.MATHAI MATHEW, KOLADATHU VILAYIL, PARACKODE, ADOOR VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.R.MANOJ RESPONDENTS: RESPONDENT/COMPLAINANT ------------- 1. ROYMON.N.J, S/O.N.S.YOHANNAN, NELLIVILA VEEDU, URUKKUNNU MURI, THENMALA VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. 2. STATE OF KERALA, REP. 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.223 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 N.I Act. The cheque is for an amount of Rs.2,95,500/-. It bears the date 15.10.2001. The petitioner now faces a sentence of S.I for a period of four months. There is a further direction to pay an amount of Rs.2,95,500/- as compensation and no default sentence has been imposed. 2. Signature in the cheque is admitted. Transaction between the parties is not disputed. Notice of demand did not evoke any response. Reply to the notice of demand has not, at any rate, been produced by either side. No defence evidence whatsoever was adduced. 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.223 of 2008 2 4. The petitioner claims to be aggrieved by the impugned 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 only points out that as per the case of the complainant, 2,100 kg of pepper valued @ Rs.140/- per kg was sold to the petitioner and the cheque was issued to discharge that liability. The cheque amount is in excess by an amount of Rs.1,500/-. This is the only incongruity which the learned counsel for the petitioner has chosen to point out before this Court. I find absolutely no merit in this contention. 5. All circumstances clearly show that even though going by pure arithmetics, only an amount of Rs.2,94,000/- is due as the price of 2100 kg. of pepper @ Rs.140/- per kg, the mere fact that Rs.2,95,500/- has been paid under the cheque cannot be held to be sufficient to demolish the case of the complainant and to throw the entire case over board for that reason. No other contentions are raised. In the absence of challenge on any other specific grounds, it is not necessary for me to advert to facts in any greater detail. Suffice it to say that having gone through the impugned concurrent judgments, I am satisfied that the Crl.R.P.No.223 of 2008 3 impugned verdict of guilty and conviction do not warrant any interference at all. 6. 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, who has been compelled to fight two rounds of legal battle by now and to wait from 2001 for the redressal of his grievances. He deserves to be compensated satisfactorily. 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. Crl.R.P.No.223 of 2008 4 8. 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.3,15,000/- (Rupees Three lakhs fifteen thousand only) as compensation and in default to undergo S.I for a period of 3 months. If realised the entire amount shall be released to the complainant. 9. The petitioner shall have time till 31.03.08 to raise and pay the compensation amount and avoid the default sentence. The modified sentence hereby imposed shall not be executed till that date. On or before 01.04.08, the petitioner shall appear and his sureties shall produce him before the learned Magistrate for execution of the modified sentence hereby imposed. (R.BASANT, JUDGE) rtr/- Crl.R.P.No.223 of 2008 5