IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 Crl.Rev.Pet.No. 9 of 2008() --------------------------- CRA.781/2006 of SESSIONS COURT, KOTTAYAM CC.375/2004 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- KUNJAPPAN, SON OF GOVINDAN, SYAMALAYATHIL KALLARA P.O., KOTTAYAM DISTRICT. BY ADV. SRI.V.G.ARUN RESPONDENTS: COMPLAINANT ------------------------ 1. K.M.RAJU, KONDOOKKALAYIL HOUSE, KANJIRATHANAM P.O., KADUTHURUTHY, KOTTAYAM-686 030. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 9 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd 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 N.I. Act. The petitioner now faces a sentence of S.I. for a period of one year and to pay the actual cheque amount of Rs. 2,97,000/- as compensation and in default to undergo S.I. for a further period of three months. 2. The transaction is admitted. The signature in the cheque is admitted. Handing over of the cheque is not disputed. The notice of demand, though duly received and acknowledged, did not admittedly evoke any response. No defence evidence was adduced. 3. The courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence Crl.R.P.No. 9 of 2008 2 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 challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner does not strain to assail the verdict of guilty and conviction on merits. He only prays that leniency may be shown on the question of sentence and some time may be granted to the petitioner to discharge the liability and avoid the default sentence. 5. Having gone through the impugned concurrent judgments, I reckon that as an informed and fair stand taken by the learned counsel for the petitioner. I am satisfied that the verdict of guilty and conviction are absolutely justified. 6. Coming to the question of sentence, I find merit in the prayer for leniency. 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 v. Shammy (2002 (3) KLT 852). In the facts and circumstances of the case, I do not find any Crl.R.P.No. 9 of 2008 3 compelling reasons which can persuade this court to insist on imposition of any deterrent substantive sentence of imprisonment on the petitioner. At the same time justice must be shown to the complainant also. The cheque for an amount of Rs. 2.97 lakhs is dated 7.8.2003. The complainant has been compelled by now to fight two rounds of legal battle and to wait for about 4 ½ years. Payment has still not been made to him. No civil action is initiated against the accused also, it is submitted. I am satisfied that a substantive sentence of imprisonment till rising of court and an appropriate direction for payment of compensation shall eminently meet the ends of justice. 7. 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. 8. 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. Crl.R.P.No. 9 of 2008 4 © 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 Section 357(3) Cr.P.C. to pay an amount of Rs.3,25,000/-(Rupees three lakhs twenty five thousand only) as compensation and in default to undergo S.I. for a period of three months. The modified sentence against the petitioner shall not be executed till 29.2.2008. On or before 1.3.2008 the petitioner shall appear and the sureties shall produce him before the learned Magistrate to undergo the modified sentence hereby imposed. (R. BASANT) Judge tm