IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 Crl.Rev.Pet.No. 1382 of 2002() ------------------------------ CC.21/2000 of JUDL.MAGISTRATE OF FIRST CLASS-III(MOBILE), ERNAKULAM CRA.441/2001 of III ADDL.SESSIONS COURT, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- G. UDAYAKUMAR, S/O. GOPALAKRISHNA PILLAI KUMAR PRESS, PULAMAN JUNCTION, KOTTARAKKARA. BY ADV. SRI.P.SANTHALINGAM, SENIOR ADVOCATE SRI.A.D.SHAJAN RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------- 1. PALAMATTOM CHITTIES (P) LIMITED, M.G. ROAD, ERNAKULAM, REP. BY ITS MANAGING DIRECTOR, ABDUL MAJEED RAWTHER. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.1382 of 2002 ------------------------------------- Dated this the 16th day of March, 2009 ORDER In this revision petition, the petitioner/accused assails the concurrent verdict of guilty, conviction and sentence imposed on him by the courts below. He faces the sentence of S.I for a period of 2 months. There is also a direction to pay an amount of Rs.10,000/- as compensation. No default sentence has been imposed. 2. The cheque is for an amount of Rs.10,000/-. The complainant, a chitty company contended that the cheque was issued for the due discharge of a legally enforcible debt/liability. The said cheque when presented was dishonoured by the bank on the ground of insufficiency of funds. Notice of demand was duly issued, received and acknowledged. But it did not evoke any response. The complainant came to court after observing the statutory time table scrupulously. The accused denied the offence alleged against him. Thereupon the complainant examined PW1 and proved Exts.P1 to P7. 3. The accused in the course of trial took up two contentions. It was contended first of all that the cheque was Crl.R.P No.1382 of 2002 2 not issued for the due discharge of any legally enforcible debt/liability, but was issued as security when a chity was auctioned and the price amount was released to the accused. Secondly and alternatively it was contended that the entire liability due on that chitty transaction has been discharged. 4. The accused examined himself as DW2 and a witness as DW1. It was contended that DW1 was an employee of the complainant and it is through him that signed blank cheques - 6 in number were handed over as security. Ext.D1 passbook, Ext.D2 receipts and Ext.D3 counter foils were relied on to contend that the entire liability has been discharged. 5. The courts below did not accept either of these contentions. It was found that DW1 has not been proved to be an employee of the complainant. The accused asserted the same. DW1 obliged the accused, but the complainant stoutly resisted the claim that DW1 was an employee of the complainant. No evidence whatsoever was adduced to prove that DW1 was an employee of the complainant. DW2 the accused asserted that DW1 was an employee of the complainant. The accused further stated that in Ext.D1 passbook, DW1 had affixed his signature. But DW1 did not have such a case when he was in the witness Crl.R.P No.1382 of 2002 3 box. In these circumstances the learned Magistrate took the view that DW1 has not been proved to be an employee of the complainant. Therefore his evidence that he had received the cheques as security and had handed over such blank signed cheques to the complainant was not accepted by the courts below. 6. The courts below did not accept the contention that there was discharge of the entire liability. The entries in Ext.D1 passbook do not establish such discharge. Ext.D2 series receipts even if accepted in toto, does not reveal complete discharge of liability, it was further noted. In these circumstances both contentions raised by the accused were turned down by the courts below concurrently. 7. The very same contentions are reiterated before me. But I find that on the materials available, courts below cannot be found fault with for having taking the view that both the contentions of the accused had not been established satisfactorily. In these circumstances the challenge on merits is found to be without any basis. 8. Lastly it is contended that the sentence imposed is excessive. Substantive sentence of imprisonment for a period of Crl.R.P No.1382 of 2002 4 2 months is imposed. It is prayed that leniency may be shown to the accused. 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 reported in Anilkumar v. Shammi [2002 (3) KLT 852]. I am persuaded to agree that the substantive sentence of imprisonment in this case can be modified and reduced after zealously ensuring that the complainant who has been compelled to fight 3 rounds of legal battle now and to wait from 2000 is adequately compensated. The challenge can succeed only to the above extent. 10. 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.15,000/- (Rupees Fifteen thousand only) as compensation and in default to undergo S.I for a period of 45 days. If realised the entire amount shall be released to the complainant. Crl.R.P No.1382 of 2002 5 11. The petitioner shall have time till 30.04.09 to pay the compensation amount and avoid the default sentence. The modified sentence hereby imposed shall not be executed till that date. On or before 02.05.09, the petitioner shall appear and his sureties shall produce him before the learned Magistrate for execution of the modified sentence hereby imposed. (R.BASANT, JUDGE) rtr/-