IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 Crl.Rev.Pet.No. 127 of 2002() ----------------------------- C.C.NO.1090/99 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE ECONOMIC OFFENCES, ERNAKULAM CRL.A.NO.230/2001 OF VITH ADDITIONAL SESSIONS COURT, ERNAKULAM REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- K.P.JOSEPH, KARAKKAT HOUSE, MORAKKALA KARA, KUMARAOYRAM,KUNNATHUNADU VILLAGE. BY ADV. SRI.C.AJITH KUMAR (KALLESSERIL) RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------- 1. V.KUTTAPPAN, KADAYATHU VEEDU, VEMBILLY P.O., KUNNATHUNADU VILLAGE. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.A.JOSEPH MANAVALAN FOR R1 PUBLIC PROSECUTOR AMJAD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.127 of 2002 ---------------------------------------- Dated this the 17th 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 R.I for a period of three months and to pay a fine of Rs.15,000/-. In default, he was directed to undergo S.I for a further period of two months. Out of the fine amount, Rs.10,000/- was directed to be paid to the complainant/victim as compensation under Section 357(1) Cr.P.C. 2. There are two cheques involved for a total amount of Rs.35,000/-. The issue of the cheques and the dishonour of the same are all admitted. There was purchase of a granite quarry for a total consideration of Rs.65,000/-. The licence pertaining to the quarry was also agreed to be transferred. But later, after transfer, the license was cancelled. It was, in these circumstances, that the petitioner closed his bank account and ensured that the cheques were not honoured. Before the court below, the complainant examined himself as PW1 and proved Exts.P1 to P6. The accused examined himself as DW1. 3. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the Crl.R.P.No.127/02 2 ingredients of the offence punishable under Section 138 of the N.I Act. Accordingly they proceeded to pass the impugned concurrent judgments. 4. The learned counsel for the petitioner does not strain to assail the verdict of guilty and conviction; but only submits that leniency may be shown on the question of sentence. The cheques are for a total amount of Rs.35,000/-. Substantive sentence of imprisonment of S.I for a period of three months and fine of Rs.15,000/- along with the default sentence of S.I for a period of two months is imposed. 5. There is no representation for the respondent. Having considered all the relevant circumstances, I am satisfied that the verdict of guilty and conviction is absolutely justified. The same does not warrant interference at all. 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]. I am persuaded to agree that it is not necessary to insist on imposition of any deterrent substantive sentence of imprisonment. However, I am satisfied that the complainant must be compensated adequately. The challenge in this case can succeed only to the above extent. Crl.R.P.No.127/02 3 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 and to pay the entire cheque amount of Rs.35,000/- (Rupees thirty five thousand only) as compensation under Section 357(3) Cr.P.C. If realised, the entire amount shall be released to the complainant as compensation. If the amount is not paid, the petitioner shall undergo S.I for a further period of two months. 8. The petitioner shall have time till 30/04/2009 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 or before 02/05/2009 to serve the modified sentence hereby imposed. (R.BASANT, JUDGE) jsr Crl.R.P.No.127/02 4 Crl.R.P.No.127/02 5 R.BASANT, J Crl.M.A.Nos.21 & 65 of 2008 in Crl.R.P.No.765 of 2007 ORDER 17th DAY OF JANUARY 2008