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. 278 of 2002(A) ------------------------------ CRA.317/1999 of SESSIONS COURT, KOZHIKOE ST.1354/1996 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- T.SAJEEVAN, S/O. T.KRISHNAN, THEVARKANDI HOUSE, THIRUVANNOOR. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------- 1. P.USMAN, S/O.MAMMEDKOYA, NALLALAM, KOZHIKODE. 2. STATE OF KERALA,REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.R.SUDHISH FOR R1 SMT.M.MANJU FOR R1 PUBLIC PROSECUTOR SRI. P. RAVINDRA 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. 278 of 2002 ------------------------------------------------- Dated this the 16th day of March, 2009 ORDER The revision petitioner assails a concurrent verdict of guilty, conviction and sentence in a prosecution under Sec.138 of the Negotiable Instruments Act. The petitioner has been sentenced to undergo simple imprisonment for a period of three months. 2. The cheque is for an amount of Rs.1 lakh. The complainant contended that the cheque was issued for the due discharge of a legally enforcible debt/liability. The cheque was presented for encashment; but was dishonoured on the ground of insufficiency of funds. Notice of demand though duly received and acknowledged by the accused did not evoke any response. The complainant came to court after observing the statutory time table scrupulously. The accused denied the offence. Thereupon the complainant examined himself as Crl.R.P. No. 278 of 2002 -: 2 :- P.W.1. Exts.P1 to P6 were marked. 3. In the course of trial, the accused admitted his signature in the cheque. But, according to him, the cheque was not issued for the due discharge of any legally enforcible debt/liability. He took up a plea that the complainant and the accused were doing partnership business as per an unwritten agreement. The son of the complainant was working in the establishment. He had stealthily removed a signed blank cheque. The same was being misutilised by the complainant to stake a non-existent claim. No defence evidence was adduced. 4. The courts below concurrently came to the conclusion that the complainant has succeeded in proving that the cheque was issued for the due discharge of a legally enforcible debt/ liability. The courts below further found that all the ingredients of offence punishable under Sec.138 of the N.I. Act have been established. 5. Called upon to explain the nature of the challenge which the revision petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner only prays that leniency may be shown on the question of sentence. The learned counsel for the petitioner submits that the imposition of a deterrent substantive sentence of imprisonment for three months is not justified at all. Crl.R.P. No. 278 of 2002 -: 3 :- 6. I have considered all the relevant inputs. I am satisfied that the concurrent verdict of guilty and conviction are absolutely justified. Though an empty and blank plea is raised that it was a blank signed cheque stealthily removed by the complainant's son from the business premises, there is no iota of evidence or probabilities in support of such plea. In the absence of challenge, it is not necessary for me to advert to the facts in any greater detail in this order. 7. Coming to the question of sentence, the cheque is for an amount of Rs.1 lakh. It bears the date 15/1/96. The payment has not been made yet. However, I am satisfied that a lenient view can be taken on the question of sentence. I have already adverted to the principles governing imposition of sentence in a prosecution under Sec.138 of the N.I. Act in the decision reported in Anilkumar v. Shammy (2002 (3) K.L.T. 852). I am not satisfied that there are any compelling circumstances available in this case which would justify the imposition of any deterrent substantive sentence of imprisonment on the petitioner. Leniency can be shown on the question of sentence. But at the same time the courts cannot ignore the plight of the respondent/complainant who has been compelled to fight three rounds of legal battle and wait from 1996 for the redressal of his grievance. An appropriate direction for payment of Crl.R.P. No. 278 of 2002 -: 4 :- compensation coupled with a lenient substantive sentence of imprisonment shall meet the ends of justice, I am satisfied. 8. In the result: (a) This Criminal Revision Petition is allowed in part. (b) The impugned verdict of guilty and conviction of the petitioner under Sec.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 under Sec.357(3) of the Cr.P.C. to pay an amount of Rs.1,10,000/- as compensation and in default, to undergo simple imprisonment for a period of two months. The compensation amount shall be released to the respondent/complainant. (d) The revision petitioner shall have time till 2/5/2009 to appear before the court below and undergo the modified sentence hereby imposed. Needless to say, the amount, if any, lying in deposit shall be released to the respondent/complainant Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.R.P. No. 278 of 2002 -: 5 :- R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 278 of 2002 ------------------------------------------------- Dated this the 16th day of February, 2009 ORDER