IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 Crl.Rev.Pet.No. 4574 of 2007() ------------------------------ CRA.1018/2006 of VI ADDL.SESSIONS COURT, ERNAKULAM CC.1413/2003 of J.F.C.M, KOTHAMANGALAM .................... REVN. PETITIONER: APPELLANT/ACCUSED ------------------ KURIAN @ KUNJU,S/O.VARKEY,AGED 55, VALLAMATTATHIL HOUSE,PANDAPILLY P.O,PANDAPILLY. BY ADV. SRI.T.RAJESH RESPONDENTS: RESPONDENTS/COMPLAINANTS ------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. V.D.JOHN,AGED 64,VENGAPPILLIL HOUSE, CHERUPURA,PALAMATTOM,KOTHAMANGALAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.4574 of 2007 ---------------------------------------- Dated this the 9th 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. After the appellate modification of the sentence, the petitioner now faces a sentence of S.I for a period of fifteen days. There is a further direction to pay an amount of Rs.83,140/- as compensation and in default to undergo S.I for a period of three months. 2. The cheque is for an amount of Rs.83,140/-. It bears the date 30/09/2000. The petitioner allegedly owed amounts to the father of the complainant. To discharge that liability Ext.D2 cheque was admittedly issued to the father of PW1. It bears the date 30/09/1998. Amounts were paid in partial discharge of the said liability and in that account an amount of Rs.83,140/- remained to be paid. At the instructions of the father of PW1, the petitioner had issued a cheque for Rs.83,140/- to the complainant. The complainant presented that cheque for encashment. It was dishonoured for the reason of insufficiency of funds. The complainant scrupulously followed the statutory time table. Notice of demand was received. It did not evoke any Crl.R.P.No.4574/07 2 payment. It evoked only Ext.D3 reply in which a plea was raised that the said amount of Rs.83,140/- had been paid to the brother of PW1, that is DW2, at the instructions of the father of the complainant as also the complainant. 3. The accused denied the offence alleged against him. The complainant examined himself as PW1 and the Bank Manager as PW2. Exts.P1 to P6 were marked. The accused examined himself as DW1 and the brother of PW1 as DW2. Exts.D1 to D3 were also marked. 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. 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 reiterates the contentions which were raised before the courts below. The learned counsel for the petitioner contends that the cheque was a blank cheque issued as security to the father of PW1; but the liability had been discharged by making payments to DW2 on the basis of the instructions of the father of PW1 as Crl.R.P.No.4574/07 3 also PW1. The short question to be considered is whether the said plea has been established or atleast whether the said defence advanced by the petitioner has been rendered probable and whether that competes favourably with the evidence and version of PW1. 5. I have been taken through the entire material. I must alertly remind myself of the nature, quality and contours of the jurisdiction which I am called upon to exercise. At this third tier of criminal litigation exercising revisional jurisdiction, interference is necessary only if the findings are grossly erroneous and they in turn lead to miscarriage of justice. 6. According to me, a perusal of Ext.D3 can resolve the controversy raised in this case. It is significant that in Ext.D3, there is no whisper of a contention that the cheque issued was a blank cheque issued to the father of PW1. In fact the very specific statement in Ext.D3 is that as instructed by the father, cheque for Rs.83,140/- “in favour of PW1” was issued as a security. 7. There is nothing in evidence to show that the cheque was issued as a blank cheque as security to the father of the complainant or even to the complainant. Though there is a plea of discharge, except the self-serving testimony of DW1 and the Crl.R.P.No.4574/07 4 assertions of DW2, brother of PW1, who admittedly is in enemical terms with PW1, there is no other or better evidence at all. If the complainant had authorised the petitioner to make the payment of the amount of the cheque to his brother DW2, it is elementary to expect the petitioner to insist on a discharge by the complainant or the handing over of the original cheque which was admittedly handed over. It will not be inapposite in this context to note that Ext.D2, an earlier cheque was produced by the petitioner herein and marked through DW2. That shows the earlier conduct of the petitioner taking back the cheques before making payments and issuing fresh cheques for discharge of the balance liability. The totality of the circumstances, according to me, eminently show that the finding of the courts below that the cheque was issued for the discharge of liability to the complainant and that the said liability remains undischarged is eminently correct and does not warrant any interference. No other contentions are raised on merits. I am satisfied, in these circumstances, that the verdict of guilty and conviction are absolutely justified. No interference is hence warranted. 8. The learned counsel for the petitioner finally submits that leniency may be shown on the question of sentence. The petitioner has to serve a substantive sentence of imprisonment Crl.R.P.No.4574/07 5 for fifteen days. The said imprisonment may be avoided, it is submitted. 9. 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 patiently from 2000 for the redressal of his grievances. The challenge can succeed only to the above extent. 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. 10. 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 Crl.R.P.No.4574/07 6 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.1,00,000/- (Rupees one lakh 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 29/02/2008 to make the payment. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 01/03/2008 to serve the modified sentence hereby imposed. The impugned sentence shall not be executed till that date. If the petitioner does not so appear before the learned Magistrate on or before 01/03/2008, the learned Magistrate shall thereafter proceed to execute the modified sentence hereby imposed. 9. Needless to say, credit shall be given to the amount of Rs.25,000/- (Rupees twenty five thousand only) which is said to be deposited by the petitioner before the courts below . The said amount shall forthwith be released to the complainant. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.R.P.No.4574/07 7 Crl.R.P.No.4574/07 8 R.BASANT, J C.R.R.P.No. ORDER Crl.R.P.No.4574/07 9 21ST DAY OF JULY 2006