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. 19 of 2008() ---------------------------- CRA.26/2007 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.4/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II(MOBILE),ALAPPUZHA .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- JOJI JOSEPH, SON OF JOSEPH, AGED 54, CHERUKARA HOUSE, SUBRAMONYAPURAM, AVALOOKUNNU P.O., ALAPPUZHA. BY ADV. SRIR.AZAD BABU RESPONDENTS: RESPONDENTS/COMPLAINANT ------------------------------------ 1. D.SURENDRANATH, S/O SAHADEVAN, SARASWATHY BHAVAN, KARUKAYIL WARD, THATHAMPALLY P.O., ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE 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.19 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 Negotiable Instruments Act. 2. The cheque is for an amount of Rs.1,00,000/- and bears the date 12/10/2004. The petitioner now faces a sentence of S.I for a period of six months and there is a direction to pay the actual cheque amount of Rs.1,00,000/- as compensation and in default to undergo S.I for a period of two months. The signature in the cheque is admitted. Handing over of the cheque is not disputed. Notice of demand did not evoke any response. The complainant examined himself as PW1 and proved Exts.P1 to P4. The accused did not adduce any oral evidence. Ext.D1 was 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. Crl.R.P.No.19/2008 2 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, fairly it appears to me, does not strain to challenge the verdict of guilty and conviction. He prays that leniency may be shown on the question of sentence. The petitioner may be saved of any deterrent substantive sentence of imprisonment. He is willing to compensate the complainant adequately, submits the learned counsel for the petitioner. 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. The verdict of guilty and conviction are found to be absolutely justified and unexceptionable. In the absence of challenge on any specific grounds, it is not necessary for me to advert to facts in any greater detail in this order. 6. Coming to the question of sentence, the learned counsel for the petitioner prays that the sentence imposed is excessive. 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 vs.Shammi [2002 (3)KLT 852]. In the facts and circumstances of the case, I find no Crl.R.P.No.19/2008 3 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 by now for the redressal of his grievances. 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. 7. 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 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.1,20,000/- (Rupees one lakh twenty thousand 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. Crl.R.P.No.19/2008 4 8. The petitioner shall have time till 29/2/2008 to make the payment and avoid the default sentence. The impugned sentence shall not be executed till that date. On or before 01/03/2008, the petitioner shall appear and the sureties shall produce him before the learned Magistrate to serve the modified sentence hereby imposed. 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. It is submitted that an amount of Rs.25,000/- has already been deposited before court. If so, only the balance amount need be paid to the complainant/deposited before court. Such amount in deposit shall forthwith be released to the complainant. (R.BASANT, JUDGE) jsr Crl.R.P.No.19/2008 5 Crl.R.P.No.19/2008 6 R.BASANT, J C.R.R.P.No. ORDER 21ST DAY OF JULY 2006