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. 227 of 2008() ----------------------------- CRA.1191/2003 of ADDL.DISTRICT SESSIONS COURT (ADHOC-III), N.PARAVUR CC.306/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... REVN. PETITIONER/ACCUSED: ------------------ C.U.HUSSAIN, 14/1929, CHULLIKKAL, R.K.PILLAI ROAD, KOCHI-5. BY ADV. SRI.C.D.JOHNY SMT.MAREENA JOSEPH JOSEPH RESPONDENTS/COMPLAINANT: ------------- 1. K.A.BABU, KANNAMPUZHA, 32/2023, NETHAJI ROAD, EDAPPALLY P.O. 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 30/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.227 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 Negotiable Instruments Act. The cheque is for an amount of Rs.1,00,000/-. It bears the date 20/10/1999. The petitioner now faces a sentence of S.I for a period of six months. There is no direction to pay fine or compensation 2. The signature in the cheque is admitted. Notice of demand though duly received and acknowledged did not admittedly evoke any response. The short contention raised in the course of trial was that the cheque was not handed over to the complainant for the discharge of any legally enforcible debt/ liability; but was handed over to him as security in a real estate transaction. The accused did not adduce any defence evidence. 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. Crl.R.P.No.227/08 2 4. 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 only prays that leniency may be shown on the question of sentence. Substantive sentence of imprisonment may be reduced. The petitioner shall show his bona fides by agreeing for payment of adequate compensation to the complainant as may be fixed by this court. I am satisfied that the impugned verdict of guilty and conviction are absolutely justified and unexceptionable in law. In the absence of challenge on any specific grounds, it is not necessary for me to advert to facts in any greater detail. 5. I find merit in the plea 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 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 to wait from 1999 for the Crl.R.P.No.227/08 3 redressal of his grievances. I note that the delay of 438 days has been condoned without imposing any condition regarding cost with the observation that appropriate provision shall be made in the order to be passed in the Crl.R.P. 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. 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.1,20,000/- (Rupees one lakh twenty 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 impugned sentence shall not be executed till Crl.R.P.No.227/08 4 that date. 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. 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.227/08 5 R.BASANT, J Crl.M.A.Nos.21 & 65 of 2008 Crl.R.P.No.227/08 6 in Crl.R.P.No.765 of 2007 ORDER 17th DAY OF JANUARY 2008