IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 Crl.Rev.Pet.No. 1211 of 2001 ------------------------------ CRA.285/1999 of SESSIONS COURT, ALAPPUZHA CC.664/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... REVN. PETITIONER:APPELLANT/ACCUSED --------------------- M.Y.MAHABOOB, AGED 43, S/O.YAKOOB, ANZARI MANZIL, WARD NO.IV, MANNANCHERRY PANCHAYAT, MANNANCHERRY P.O., ALAPPUZHA. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENTS:RESPONDENTS/COMPLAINANT & STATE --------------- 1. SHAJI, S/O.GANGADHARAN, MOZHYPPURATH, MANNANCHERRY.P.O, ALAPPUZHA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.1211 of 2001 ------------------------------------- Dated this the 7th day of July, 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 N.I Act. The petitioner now faces a sentence of S.I for a period of one month. There is also a direction to pay an amount of Rs.5,000/- as fine amount and in default to undergo S.I for a period of three months. The fine amount if realised was directed to be paid to the complainant as compensation. 2. The complainant alleged that the accused had borrowed an amount of Rs.30,000/- and had issued a cheque dated 30.06.96 for Rs.30,000/- for the discharge of the said liability. The cheque when presented was dishonoured by the bank on the ground of insufficiency of funds. Notice of demand was duly issued. But the same was returned unclaimed. The amount was not paid. The complainant after observing the statutory time table scrupulously had come to Court with the claim under Section 138 of the Negotiable Instruments Act. Crl.R.P No.1211 of 2001 2 3. The learned Magistrate took cognizance of the offence alleged. The accused denied the offence alleged against him. Thereupon the complainant examined PWs 1 and 2 and proved Exts.P1 to P5. The accused took the stand that the cheque was not issued for the due discharge of any legally enforcible debt/liability, but was issued as security when an amount of Rs.2,000/- was borrowed from a money lender. He examined DW1, a witness, who had allegedly witnessed the handing over of the cheque by the accused. 4. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act. Accordingly they proceeded to pass the impugned concurrent judgments. 5. The main contention raised is that the cheque was not issued for the due discharge of any legally enforcible debt/liability. On this aspect, we have the evidence of PWs 1 and 2. Their evidence clearly shows that the cheque was handed over by the accused to the complainant for the due discharge of a legally enforcible debt/liability. The notice of demand though duly addressed to the accused, was not claimed and there was no Crl.R.P No.1211 of 2001 3 reply sent to the said notice of demand. The oral evidence of the complainant as PW1 is eminently supported by the oral evidence of PW2. It is further supported by the ability of the complainant to produce Ext.P1 cheque drawn on a cheque leaf issued to the accused by his bank to operate his account. Convenient plea raised that the cheque was issued as security for a loan transaction to another is not shown to be probable. The same has not been substantiated. The evidence of DW1 as rightly found by the courts below is insufficient to discard the weight of evidence tendered by PWs 1 and 2 and the other circumstances which are eloquent. The alleged correction in the date shown on Ext.P1 is insufficient to confer any benefit or advantage to the accused in the circumstances of the case. In these circumstances, I am of the opinion that the courts below committed no error in accepting and acting upon the oral evidence of PWs 1 and 2 in preference to the oral evidence of DW1. At any rate, at this third tier of criminal litigation, I am not persuaded to interfere with the concurrent finding of fact rendered by the courts below. 6. The evidence of PWs 1 and 2 when accepted clearly establishes all ingredients of the offence punishable under Crl.R.P No.1211 of 2001 4 Section 138 of the Negotiable Instruments Act. I find no merit on the challenge raised against the verdict of guilty and conviction. 7. The only other contention to be considered is the sentence imposed. It is prayed that the sentence may be modified and reduced. 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 1996 for the redressal of his grievances. He deserves to be compensated satisfactorily. The challenge can succeed only to the above extent. 8. In the result: a) This Crl.R.P is allowed in part; Crl.R.P No.1211 of 2001 5 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.30,000/- (Rupees Thirty thousand only) 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 complainant. 10. The petitioner shall have time till 31.08.09 to raise and pay the compensation amount and avoid the default sentence. The modified sentence hereby imposed shall not be executed till that date. On or before 31.08.09, 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/-