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. 1194 of 2003() ------------------------------ CRL.A.NO.126/01 OF THE SESSIONS COURT, MANJERI. S.T.NO.240/99 OF THE CJM COURT, MANJERI. REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.C.MOHAMMED ASHARAF, S/O.ABDURAHIMAN, KOTTAKATH CHOLAYIL HOUSE, PAYYANAD, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. V.G.KUNHIMAYIN, S/O.MAMMED, PANDIKKAD, KODASSERY, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY P.P. SRI. AMJAD ALI. ADV. SRI.K.M.SATHYANATHA MENON FOR R1 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.1194 of 2003 ------------------------------------------------- Dated this the 17th day of March, 2009 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sec.138 of the Negotiable Instruments Act. The cheque is for an amount of Rs.80,000/-. Signature in the cheque is admitted. A financial transaction between the complainant and the petitioner/accused is also admitted. The short dispute is about the amount involved in the transaction. While the complainant asserts that the cheque was issued for the due discharge of a debt/liability of Rs.80,000/-, the accused contended that the transaction was for Rs.50,000/- only. Towards this liability, there is a contention that there has been a partial discharge. Notice of demand though duly received and acknowledged did not evoke any response. The Crl.R.P. No.1194 of 2003 -: 2 :- complainant came to court after scrupulously observing the statutory time table. P.W.1 was examined and Exts.P1 to P5 were marked. The accused took up a defence that the cheque was not issued for the due discharge of any legally enforcible debt/liability and that the liability has been partially discharged. 2. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Sec.138 of the N.I. Act. Accordingly, they proceeded to pass the impugned concurrent judgments. The petitioner now faces a sentence of simple imprisonment for a period of one month and to pay a fine of Rs.10,000/-. In default of payment of fine, he has been sentenced to undergo simple imprisonment for a further period of one month. 3. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent verdict of guilty, conviction and sentence, the learned counsel for the petitioner reiterates the contentions that were raised before the courts below. The cheque was not issued for the due discharge of any legally enforcible debt/liability and there was a partial discharge, contends the learned counsel for the petitioner. Crl.R.P. No.1194 of 2003 -: 3 :- 4. We have the oral evidence of P.W.1 about the nature of the transaction. His evidence is supported eminently by his ability to produce Ext.P1 cheque admittedly signed by the petitioner. His evidence gets further assurance from the fact that the notice of demand though duly received and acknowledged did not evoke any response. No defence evidence is adduced by the accused also. In these circumstances, I find no merit in the contention that the cheque was not issued for the due discharge of any legally enforcible debt/liability. 5. Less said about the theory of partial discharge, the better. Nothing has been produced to show such partial discharge. There is inconsistency regarding the nature of the alleged discharge. I am, in these circumstances, satisfied that the plea of discharge cannot also be accepted. 6. The learned counsel for the petitioner finally contends that the sentence imposed is excessive. A lenient view may be taken and the substantive sentence of imprisonment may be modified and reduced, contends the learned counsel. 7. The learned counsel for the respondent/complainant, on the other hand, contends that if leniency were shown to the petitioner, it may be ensured that the complainant who has been compelled to fight three rounds of legal battle and wait from Crl.R.P. No.1194 of 2003 -: 4 :- 1999 may be adequately compensated. 8. 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 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 three rounds of legal battle by now and to wait from 1999 for the redressal of his grievances. He deserves to be compensated satisfactorily. The challenge can succeed only to the above extent. 9. 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 to pay an amount of Rs.80,000/- Crl.R.P. No.1194 of 2003 -: 5 :- as compensation under Section 357(3) Cr.P.C and in default to undergo S.I for a period of one month. If realised the entire amount shall be released to the respondent/complainant. Needless to say, credit shall be given to the amounts, if any, already deposited before the court below. 10. The petitioner shall have time till 30/4/09 to make the payment and avoid the default sentence. 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 2/5/09 for execution of the modified sentence hereby imposed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.R.P. No.1194 of 2003 -: 6 :- R. BASANT, J. ------------------------------------------------- Crl.R.P. No.1194 of 2003 ------------------------------------------------- Dated this the 17th day of March, 2009 ORDER