IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 Crl.Rev.Pet.No. 29 of 2008() ---------------------------- CRA.118/2007 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.588/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... REVN. PETITIONER: APPELLANT/ACCUSED ------------------------- JAISON, S/O. ANTONY, AGED 32, AALUNKAL HOUSE, CHANDIROOR P.O., CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.R.MURALEEKRISHNAN RESPONDENTS: COMPLAINANT ------------------------ 1. RAFEL P.G., PATTAPARAMBIL HOUSE, ERAMALLOOR P.O., CHERTHALA, ALAPPUZHA DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.29 of 2008 ---------------------------------------- Dated this the 7th 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. The petitioner now faces a sentence of S.I for a period of three months. There is a further direction to pay Rs.25,000/- as compensation and in default to undergo S.I for a period of two months. 2. The cheque is for an amount of Rs.25,000/-. It bears the date 02/06/2005. The signature in the cheque is admitted. Transactions between the complainant and the petitioner are also admitted. Handing over of the cheque is not disputed. Notice of demand did not evoke any response. The short contention that was raised in the course of trial was that the cheque was handed over as security for a chitty transaction. The complainant examined PW1 and proved Exts.P1 to P6. The accused did not adduce any defence evidence. In 313 examination, the contention raised was that the cheque was not issued for the due discharge of any legally enforcible debt or liability but only as security. Crl.R.P.No.29/2008 2 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. 4. The impugned judgments have been perused by me. 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 does not strain to assail the verdict of guilty and conviction. He prays that leniency may be shown on the question of sentence. A deterrent substantive sentence of imprisonment may be avoided. It is further prayed that a reasonable further time may be granted to the petitioner to pay the amount of compensation. 5. I am satisfied that the verdict of guilty and conviction are absolutely justified and do not warrant any revisional interference. 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, 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 Crl.R.P.No.29/2008 3 Anilkumar vs.Shammi [2002(3)KLT 852]. In the facts and circumstances of the case, I find no 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. The challenge can succeed only to the above extent. 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.30,000/- (Rupees thirty thousand only) as compensation and in default, to undergo S.I for a period of two months. If realised, the entire amount shall be released to the complainant as compensation. Crl.R.P.No.29/2008 4 8. It is further directed that this modified sentence against the petitioner shall not be executed till 29/2/2008. On or before that date, the petitioner shall appear and his 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 29/02/2008, the learned Magistrate shall thereafter proceed to execute the modified sentence hereby imposed. 9. Needless to say, an amount of Rs.5,000/- (Rupees five thousand only) which is said to be in deposit before the learned Magistrate shall be given due credit and the same shall be forthwith released to the complainant. (R.BASANT, JUDGE) jsr Crl.R.P.No.29/2008 5 Crl.R.P.No.29/2008 6 R.BASANT, J C.R.R.P.No. ORDER 21ST DAY OF JULY 2006