IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 Crl.Rev.Pet.No. 100 of 2008() ----------------------------- CRA.495/2005 OF THE SESSIONS COURT, MANJERI DIVISION. CC.193/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- SAIDALI, S/O. KUNHAMMED, KAKKENGAL HOUSE, CHENAPPADY, PULLANGODE P.O., KALIKAVU. BY ADV. SRI.GEORGE BRISTON SRI.PREMCHAND R.NAIR RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE -------------------------------------------- 1. E.H.YOOSUF, S/O. HAMEED, ELAMTHRUTHIL HOUSE, CHENAPPADI, PULLANGODU P.O., KALIKAVU. 2. STATE OF KERALA - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. GIKKU JACOB. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.R.P. No.100 OF 2008 ------------------------------------------------- Dated this the 17th day of January, 2008 ORDER 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. After the appellate modification of the sentence, the petitioner faces a sentence of simple imprisonment for a period of three months and to pay an amount of Rs.1,25,000/- as compensation. No default sentence is imposed by the appellate court. 2. The cheque is for an amount of Rs. 1,20,000/-. It bears the date 17/11/04. The signature in the cheque is admitted. That it was handed over is also not disputed. The short contention that was urged on merits was that the cheque was not issued to the complainant for the due discharge of any legally enforcible debt/liability; but it was issued as security for the discharge of a liability. The said liability had been Crl.R.P. No. 100 OF 2008 -: 2 :- discharged also, it was contended. 3. The complainant examined himself as P.W.1 and proved Exts.P1 to P5. The accused did not adduce any defence evidence. 4. The courts below 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. 5. The petitioner claims to be aggrieved by the impugned appellate judgment. 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 only prays that the deterrent substance sentence of imprisonment may be avoided and the petitioner may be given some further time to make the payment of the compensation amount. The compensation amount shall be paid within a period of three months. The direction may be made enforcible by imposition of default sentence. The petitioner shall certainly Crl.R.P. No. 100 OF 2008 -: 3 :- make the payment within the stipulated period, submits the learned counsel for the petitioner. 6. I have perused the impugned concurrent judgments. I find the verdict of guilty and conviction to be absolutely justified and unexceptional. In the absence of challenge on any specific ground, I am satisfied that it is not necessary for me to advert to the facts in any greater detail in this order. 7. Coming to the question of sentence, I find merits 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 reported in Anilkumar v. Shammi [2002(3) KLT 852]. I am satisfied that there are no compelling reasons which can persuade this Court to insist on imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown on the question of sentence, but subject only to the compulsion of ensuring adequate and just compensation for the complainant, who has been compelled to fight two rounds of legal battle by now and to wait from 2005 for the redressal of his grievances. He Crl.R.P. No. 100 OF 2008 -: 4 :- deserves to be compensated satisfactorily. I am satisfied that the compensation amount can be enhanced and the default sentence can be imposed. In the nature of the relief that I propose to grant to the petitioner, I am satisfied that it is not necessary to wait for issue and return of notice to the complainant. 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 to pay an amount of Rs.1,35,000/- (Rupees One lakh thirty five thousand only) as compensation under Section 357(3) Cr.P.C and in default to undergo S.I for a period of three months. If realised the entire amount shall be released to the complainant. 11. The petitioner shall have time till 29.02.08 to make Crl.R.P. No. 100 OF 2008 -: 5 :- the payment and avoid the default sentence. The impugned sentence shall not be executed till that date. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 01.03.08 for execution of the modified sentence hereby imposed. Needless to say, credit shall be given to the amounts, if any, already deposited before the learned Magistrate. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge