IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 24TH JANUARY 2008 / 4TH MAGHA 1929 Crl.Rev.Pet.No. 164 of 2008() ----------------------------- CRA.431/2004 of I ADDL. SESSIONS COURT, PALAKKAD ST.295/2000 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------- G. RAJU, S/O. GEORGE, ARATHIVELAYIL HOUSE MANGODE P.O., CHERPLACHERRY VIA,. PALAKKAD. BY ADV. SRI.PRADEEP JOY RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------------------ 1. A. DIVAKARAN, MANAGER, HEMAMBIKA HIRE PURCHASE AND LEASING (P) LTD. S/O. LATE K. APPUNNI, 35 YEARS, ENNAKKOTTIL STREET, BIG BAZAR PALAKKAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 164 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th 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, after the indulgent modification of the sentence by the appellate court, now faces the sentence of S.I. for a period of one month. There is a further direction to pay an amount of Rs.20,000/- as compensation under Section 357(3) Cr.P.C. and in default to undergo S.I. for a period of three months. 2. The cheque is for an amount of Rs.18,400/- It bears the date 29.5.2000. Signature in the cheque is admitted. Handing over of the cheque to the complainant is also admitted. That the cheque is dishonoured on the ground of insufficiency of funds and the complainant had followed the statutory procedure and time table is not denied. The notice of demand was duly received and acknowledged, but it did not evoke any response. The Crl.R.P.No. 164 of 2007 2 accused took up a plea that the cheque was issued as security for the due discharge of a liability. According to him, it was handed over as a blank signed cheque when a hire purchase agreement was entered into. The complainant's case was also that the cheque was issued for the discharge of a liability which was outstanding in the said hire purchase transaction. No defence evidence whatsoever 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 punishable under Section 138 of the N.I.Act. Accordingly they proceeded to pass the impugned concurrent judgments. 4. The petitioner claims to be aggrieved by the impugned concurrent judgments. 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. The learned counsel only prays that leniency may be shown on the question of sentence. The substantive sentence of imprisonment may be modified and reduced. Appropriate direction for payment of compensation may Crl.R.P.No. 164 of 2007 3 be issued and the petitioner may be given some further time to raise the amount, pay the same and avoid the default sentence. 5. 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). I am not satisfied that there are any compelling reasons which would justify or warrant imposition of any deterrent substantive sentence of imprisonment on the petitioner. Leniency can be shown on the question of sentence, but subject only to the compulsion of ensuring that the complainant, who has been compelled to wait from 2000 and to fight two rounds of legal battle for the redressal of his grievances is adequately compensated. I do also take note of the fact that I condone the delay of 363 days without notice to the complainant and without imposing any cost on the petitioner with the observation that appropriate provision shall be made when the revision is disposed of. 6. In the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of notice on the respondent. Crl.R.P.No. 164 of 2007 4 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. © 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.23,400/- as compensation and in default to undergo S.I. for a period of three months. 8. The petitioner shall have time till 29.2.2008 to pay the amount and avoid the default sentence. The modified sentence shall not be executed till that date. On or before 1.3.2008 the petitioner shall appear, and his sureties shall produce him, before the learned Magistrate for execution of the sentence. (R. BASANT) Judge tm Crl.R.P.No. 164 of 2007 5