IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 Crl.Rev.Pet.No. 103 of 2008() ----------------------------- CRA.382/2006 of SESSIONS COURT, KOTTAYAM ST.437/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... REVN. PETITIONER: REVISION PETITIONER/APPELLANT/ACCUSED; -------------------------------------------------------- ALI RAWTHER, S/O. KAZIM RAWTHER, MAZHUVANCHERIL HOUSE, KANJIRAPPARA KARA, KANGAZHA VILLAGE, KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------- 1. SOMASEKHARAN NAIR, S/O. BHASKARAN NAIR, PULLUPALATHU HOUSE, KADAYINIKKADU KARA, KANGAZHA VILLAGE,KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR ADV.SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/01/2008, THE COURT ON 16/01/2008 PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` Crl.R.P. No. 103 OF 2008 ```````````````````````````````````````````````````` Dated this the 16th 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 petitioner now faces a sentence of simple imprisonment for a period of six months. There is a further direction to pay an amount of Rs.75,000/- as compensation and in default to undergo simple imprisonment for a further period of two months. 2. The cheque is for an amount of Rs.1,00,000/-. It bears the date 27.1.2005. Before the learned Magistrate, the complainant examined himself as PW1 and proved Exts.P1 to P11. No defence evidence was adduced. 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.103/08 : 2 : 3. 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 the sentence imposed may be modified and reduced. 4. Having gone through the impugned concurrent judgments, I am satisfied that, that is an informed and fair stand taken by the learned counsel for the petitioner. The impugned verdict of guilty and conviction are found to be absolutely reasonable and unexceptionable. In the 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. 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 Crl.R.P.103/08 : 3 : 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 27.1.05 for the redressal of his grievances. I am satisfied that there must at least a direction to pay the actual cheque amount as compensation and an appropriate default sentence to adequately compensate the victim on condition that the deterrent substantive sentence of imprisonment is avoided. 6. In the result: a) This Crl.R.P is allowed in part; b) The impugned concurrent 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. Crl.R.P.103/08 : 4 : 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 the actual cheque amount of Rs.1,00,000/- (Rupees one lakh only) as compensation under Section 357(3) Cr.P.C. and in default to undergo simple imprisonment for a period of three months. 7. The petitioner shall have time till 29.2.08 to comply with the directions for payment of compensation. This modified sentence shall not be executed till that day. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 1.3.08 for execution of the sentence. 8. In the nature of the relief which I have chosen to grant, I am satisfied that it is not necessary to wait for issue and return of notice to the respondent. (R.BASANT, JUDGE) aks