IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 Crl.Rev.Pet.No. 1497 of 2003() ------------------------------ C.C.NO.912/99 OF J.F.C.M ERNAKULAM CRL.A.NO.571/2002 OF IVTH ADDL.SESSIONS COURT, ERNAKULAM REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- V.T.ANTONY, VELUTHEDATH HOUSE, V.A.THOMMEN ROAD, EDAKOCHI, KOCHI. BY ADV. SRI.S.KRISHNAKUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT/STATE -------------------------------------------- 1. M.V.PRAMOD MALIAKKAL HOUSE, ST.BENEDICT II CROSS ROAD, ERNAKULAM, KOCHI. 2. STATE OF KERALA, REP.BY ITS PUBLIC PROSECUTOR, SESSIONS COURT, ERNAKULAM ADV. SRI.C.P.RAVIKUMAR PUBLIC PROSECUTOR SRI.C.M.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.1497 of 2003 ---------------------------------------- Dated this the 27th day of March 2009 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 petitioner now faces a sentence of S.I for a period of one month and there is a direction to pay an amount of Rs.75,000/- as compensation under Section 357(3) Cr.P.C and in default to undergo S.I for a period of one month. 2. The cheque is for an amount of Rs.70,000/-. A financial transaction between the accused and the complainant is not denied specifically and is admitted. Handing over of the cheque is also admitted. Notice of demand though duly received and acknowledged, did not evoke any response. Before the learned Magistrate, the complainant examined himself as PW1. He proved Exts.P1 to P4. The accused, in the course of the trial and when examined under Section 313 Cr.P.C, denied the allegation that the cheque was issued for the due discharge of any legally enforcible debt or liability. It was contended that the cheque was handed over as a blank signed cheque. He was not liable to pay such a huge amount, it was contended. No defence evidence was adduced. Crl.R.P.No.1497/03 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. Accordingly they proceeded to pass the impugned concurrent judgments. 4. When this revision petition came up for hearing, there was no representation for the learned counsel for the petitioner/accused. The learned counsel for the respondent/complainant was present. The learned counsel has advanced his arguments. I have perused the records of the court below and the memorandum of revision. The short contention raised is that the cheque is not issued for the due discharge of any legally enforcible debt/liability. The only other contention is that the sentence imposed is excessive. 5. We have primarily the evidence of PW1 about the circumstances under which he received Ext.P1 cheque. Admittedly, Ext.P1 cheque was signed by the accused. A transaction between the parties is not disputed also. The oral evidence of PW1 about the circumstances under which the cheque duly signed by the accused admittedly found its way to the possession of the complainant from the possession of the Crl.R.P.No.1497/03 3 accused is eminently supported by his ability to produce the signed cheque. Such evidence is clinchingly corroborated by the inaction and silence of the accused even after a notice of demand through counsel was served on him. I do not find any reason to interfere with the concurrent conclusion of the court below that the ingredients of the offence under Section 138 of the N.I.Act have been established satisfactorily. 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 three rounds of legal battle and to wait from 1997 for the redressal of his grievances. The challenge can succeed only to the above extent. 7. In the result: a) This revision petition is allowed in part. Crl.R.P.No.1497/03 4 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 under Section 357(3) Cr.P.C to pay an amount of Rs.80,000/- (Rupees eighty thousand only) as compensation and in default, to undergo S.I for a period of two months. If realised, the entire amount shall be released to the complainant as compensation. 8. The petitioner shall have time till 02/05/2009 to make the payment. 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 that date. If the petitioner does not so appear before the learned Magistrate, the learned Magistrate shall be at liberty to take coercive proceedings against the petitioner and his sureties in accordance with law. (R.BASANT, JUDGE) jsr Crl.R.P.No.1497/03 5 Crl.R.P.No.1497/03 6 R.BASANT, J Crl.R.P.No.1497 of 2003 ORDER 27th DAY OF MARCH 2009