IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 Crl.Rev.Pet.No. 89 of 2008() ---------------------------- CRA.216/2007 of III ADDL.SESSIONS COURT, KOLLAM ST.22/2006 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM .................... REVN. PETITIONER: ACCUSED ------------------------- SUJATHA, W/O.RETNAKUMAR, KARUTHARAYIL VEEDU, MANDROTHURUTHU P.O., KOLLAM. BY ADV. SRI.A.RAJASIMHAN RESPONDENTS: COMPLAINANT & STATE -------------------------------- 1. RAJESH K.P., GURUPRASADAM, UDAYAMARTHANDAPURAM CHERRY, MUNDAKKAL VILLAGE, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.89 of 2008 ---------------------------------------- Dated this the 15th 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 petitioner now faces a sentence of S.I for a period of six months and there is a direction to pay an amount of Rs.90,000/- as compensation and in default to undergo S.I for a period of two months. 2. The cheque is for an amount of Rs.90,000/-. It bears the date 30/09/2003. The signature in the cheque is admitted. Notice of demand though duly issued and despatched was returned unserved. The complainant examined himself as PW1 and proved Exts.P1 to P5. Postman who attended service was examined as XW1. Ext.X1 was a document of proof which he was examined. The accused took up the stand that the cheque had not been issued to the complainant; but that was issued as security in a financial transaction which the husband of the petitioner along with the petitioner had entered into with the complainant. That liability had been discharged. The blank signed cheque retained by the complainant is being misutilised Crl.R.P.No.89/08 2 by him to initiate this vexatious proceedings against the petitioner, it was contended. No defence evidence whatsoever was adduced. 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. The petitioner claims to be aggrieved by the impugned concurrent judgments. 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. 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. The plea has not been substantiated at all. The petitioner has not succeeded in even raising a reasonable doubt against the case of the complainant. The challenge on merits cannot obviously hence succeed. In the Crl.R.P.No.89/08 3 absence of challenge on any specific grounds, it is not necessary for me to advert to facts in any greater detail in this order. 5. The learned counsel for the petitioner then only prays that leniency may be shown on the question of sentence. 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 wait from 2003 for the redressal of his grievances. 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 revision petition is allowed in part. Crl.R.P.No.89/08 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.95,000/- (Rupees ninety 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. 8. The petitioner shall have time till 15/03/2008 to make the payment. 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. The impugned sentence shall not be executed till that date. 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.89/08 5 Crl.R.P.No.89/08 6 R.BASANT, J C.R.R.P.No. Crl.R.P.No.89/08 7 ORDER 21ST DAY OF JULY 2006