IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 Crl.Rev.Pet.No. 144 of 2008() ----------------------------- CRA.40/2006 of ADDL. SESSIONS COURT-II, MAVELIKKARA CC.1195/2004 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- BABU RAJ, PUTHRASSERIL HOUSE, KARIMULACKAL MURI, CHUNAKKARA VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN RESPONDENTS: RESPONDENTS/STATE AND COMPLAINANT ---------------------------------------------- 1. AMBIKA, THACHANTE KIZHAKKETHIL, KOMALLOOR P.O., CHUNAKKARA, NOW RESIDING AT KARTHIKA BHAVANAM, PEROORKARAZHMA, THAMARAKULAM VILLAGE. 2. STATE OF KERALA, REPRESENTED 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 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P.No.144 of 2008 ------------------------------------- Dated this the 29th day of January, 2008 ORDER 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.75,000/-. It bears the date 30.04.2004. The petitioner now faces a sentence of s.i for a period of one year and to pay an amount of Rs.85,000/- as compensation and in default to undergo s.i for a period of six months. 2. Signature in the cheque is admitted. Notice of demand though duly received and acknowledged, did not evoke any response. No defence evidence whatsoever was adduced. No specific explanation was offered as to how the cheque happened to leave the hands of the petitioner and reached the hands of 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. The accused has not succeeded in proving his case or even in generating a reasonable doubt about the case of the complainant. Crl.R.P.No.144 of 2008 2 Accordingly they proceeded to pass the impugned concurrent judgments. 4. 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 prays that leniency may be shown on the question of sentence. 5. Having gone through the impugned concurrent judgments, I reckon that as an informed, fair and reasonable stand taken by the learned counsel for the petitioner. The impugned verdict of guilty and conviction is found to be absolutely justifiable and totally unexceptionable. In the absence of challenge on any specific grounds, it is not necessary for me to advert to facts in any greater detail. 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 Crl.R.P.No.144 of 2008 3 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 2004 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. 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 under Section 357(3) Cr.P.C to pay an amount of Rs.87,500/- (Rupees Eighty seven thousand five hundred only) as compensation and in default to undergo S.I for a period of 6 months. If realised the entire amount shall be released to the complainant. Crl.R.P.No.144 of 2008 4 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. 10. It is submitted that the petitioner is in custody now undergoing the sentence. He shall be released from custody on condition that he deposits an amount of Rs.10,000/- (Rupees ten thousand only) and executes a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate undertaking to appear again before the learned Magistrate on or before 01/04/2008 to make the payment. The amount of Rs.10,000/- (Rupees ten thousand only) remitted shall be released to the complainant forthwith. Hand over copy of this order to the learned counsel for the petitioner today itself. (R.BASANT, JUDGE) rtr/- Crl.R.P.No.144 of 2008 5