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. 1268 of 2002() ------------------------------ CRA.2/2000 of SESSIONS COURT, THRISSUR ST.2189/1996 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... REVN. PETITIONER(S): APPELLANT - ACCUSED ---------------------------------------- MATHAI ALIAS KUNJAPPAN, S/O.KURIAKOSE, POKKAL HOUSE, KAINOOR VILLAGE, THONIPARA DESOM, THRISSUR TALUK. BY ADV. SRI.C.V.ANTONY KOTHAMANGALAM SRI.GODSON A.THAYYIL RESPONDENT(S): RESPONDENTS - COMPLAINANT ---------------------------------------- 1. RAJAN, S/O.POLUVELAPPIL GOVINDAN, EZHUTHASSAN, KAINUR VILLAGE, THONIPARA DESOM, THRISSUR TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. ADV. SRI.JIJO PAUL FOR R1 PUBLIC PROSECUTOR SRI.P.RAVEENDRA 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. 1268 of 2002 ------------------------------------------------- Dated this the 16th day of March, 2009 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sec.138 of the Negotiable Instruments Act. The cheque is for an amount of Rs.42,000/-. The cheque was dishonoured on the ground of insufficiency of funds. Notice of demand was issued and was duly served on the petitioner; but it evoked no response. The complainant observed the statutory time table strictly and launched the prosecution. The accused denied the offence alleged against him. Thereupon, the complainant examined himself as P.W.1 and proved Exts.P1 to P6. 2. The accused denied the offence alleged against him. According to him, the cheque was not issued by him to the complainant for the due discharge of any legally enforcible debt/ liability. He had handed over the cheque to D.W.2 – a money lender. Subsequently, he had repaid the entire amount due to D.W.2. He had obtained Ext.D1 receipt also for that payment. D.W.2 did not return the cheque. That cheque came into the Crl.R.P. No. 1268 of 2002 2 hands of the complainant and the complainant is misutilising the same to stake this false claim. The accused examined himself as D.W.1 and the financier/money lender to whom he had allegedly handed over Ext.P1 cheque as D.W.2. Ext.D1 receipt issued by D.W.2 was also marked. 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 did not accept the theory that even after the discharge of the liability, D.W.2 had handed over the cheque to the complainant and the complainant had misutilised the same. 3. The petitioner now faces a sentence of S.I for a period of 3 months. He is also directed to pay the cheque amount of Rs.42,000/- as compensation. No default sentence has been imposed. 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 reiterates the contentions that were raised before the courts below. It is contended that the cheque was not issued for the due discharge of any legally enforcible debt/liability and the same was handed Crl.R.P. No. 1268 of 2002 3 over as security to D.W.2. The complainant had come into possession of the cheque through D.W.2 and is misutilising the cheque, it is contended. 5. I am of the opinion that the courts below were absolutely justified in not accepting this contention on the evidence tendered by D.Ws. 1 and 2. As rightly noted by the courts below if facts were as contended by the accused/petitioner, it would be artificial to assume that no reply would have been issued to the notice of demand. Similarly, the version of D.Ws. 1 and 2 that even when liability was discharged by D.W.1, the cheque was not returned to DW1 and instead Ext.D1 receipt was given by DW2 to DW1 cannot obviously be accepted by a prudent mind. In these circumstances, the contention raised on merits cannot be accepted. 6. The learned counsel for the petitioner finally prays that leniency may be shown on the question of sentence. The counsel submits that an amount of Rs.21,000/- has already been deposited before the learned Magistrate also. Imposition of a deterrent substantive sentence of imprisonment of S.I for a period of 3 months is not necessary at all, contends the learned counsel for the petitioner. Crl.R.P. No. 1268 of 2002 4 7. I find merit in that contention. 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 a lenient view can be taken and the sentence can be modified and reduced zealously ensuring that the complainant is adequately compensated. The challenge in this revision petition can succeed only to the above extent. 8. In the result: a) This Crl.R.P 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.45,000/- (Rupees Forty five thousand only) as compensation and in default to undergo S.I for a period of 3 months. If realised the entire amount shall be released to the complainant. Crl.R.P. No. 1268 of 2002 5 9. The petitioner shall have time till 30.04.09 to pay the compensation amount and avoid the default sentence. The modified sentence hereby imposed shall not be executed till that date. On or before 02.05.09, 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