IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 Crl.Rev.Pet.No. 185 of 2008() ----------------------------- CRA.611/2005 of ADDL.SESSIONS COURT (SPL.CAURT), KOTTAYAM CC.122/2004 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM .................... REVN. PETITIONER: CRL.REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------ V.A. AZAD, AGED 40 YEARS, S/O. P.K.APPA, VALUTHOTTIYIL HOUSE, ADICHIRA, THELLAKOM P.O., KOTTAYAM. BY ADV. SRI.A.X.VARGHESE SRI.A.V.JOJO RESPONDENTS: RESPONDENTS/COMPLAINANT: ------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, KOTTAYAM. 2. M.J. REJIMON, MALIACKAL VALEL, PERUMBAICKAD VILLAGE, ETTUMANOOR. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P.Nos.185 & 186 of 2008 ------------------------------------- Dated this the 25th day of January, 2008 O R D E R These revision petitions are directed against a concurrent verdict of guilty, conviction and sentence imposed on the petitioner in two separate prosecutions, both under Section 138 of the N.I Act, which were disposed of by a common judgment by the trial court and the appellate court. 2. The cheques-Exts.P1 and P7, are for an amount of Rs.3 lakhs each. They are dated 24.07.03 and 13.06.03 respectively. The petitioner, after modification of the sentence by the appellate court, now faces a sentence of S.I for a period of four months in each case. In as much as a civil litigation is pending claiming the very same amount, no direction for payment of compensation was issued by the courts below. 2. Signatures in the cheques are admitted. Notices of demand though duly received and acknowledged, did not evoke any response. The accused examined himself as DW1 in the common trial. 3. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients Crl.R.P.Nos.185 & 186 of 2008 2 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 only prays that leniency may be shown on the question of sentence. He does not strain to assail the verdict of guilty and conviction on merits. 5. Having gone through the impugned concurrent judgments, I am satisfied that, that is an informed, fair and reasonable stand taken by the learned counsel for the petitioner. The impugned verdict of guilty and conviction are found to be absolutely reasonable 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. 6. Coming to the question of sentence, the learned counsel for the petitioner submits that the substantive sentence of imprisonment of S.I for a period of 4 months is most harsh and unnecessary. The substantive sentence may be modified, it is prayed. Crl.R.P.Nos.185 & 186 of 2008 3 7. 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 in their case 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 victim/complainant, who has been compelled to fight two rounds of legal battle by now and to wait from 2003 for the redressal of his genuine grievances. He deserves to be compensated satisfactorily. The challenge can succeed only to the above extent. 8. The learned counsel for the petitioner points out that a civil suit for recovery of the amount is also pending. But offers to abide by any reasonable direction regarding payment of compensation to the complainant. Appropriate directions may be issued that the amounts paid in pursuance of the order in these revision petitions shall be credited to the civil liability which the civil court may adjudicate and declare. This is the short prayer made by the learned counsel for the petitioner, now. Crl.R.P.Nos.185 & 186 of 2008 4 9. I am satisfied, taking all the relevant inputs into account, that the request of the learned counsel for the petitioner can be accepted. The substantive sentence of imprisonment can be modified and reduced to imprisonment till rising of court. In each case the petitioner can be directed to pay the actual cheque amount of Rs.3 lakhs along with a further amount of Rs.15,000/- in each case as compensation and cost incurred for the prosecution of the two tier litigation by now. Default sentence can also be imposed as enabled by the decisions in Sugandhi Sureshkumar v. Jagadeeshan [A.I.R 2002 S.C 681] and Harikrishnan and State of Haryana v. Sikhbir Singh and Others [AIR 1988 S.C 2127]. The challenge raised in these revision petitions can succeed only to the above extent. 10. 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. 11. In the result: a) These Crl.R.Ps are allowed in part; b) The impugned verdict of guilty and conviction of the petitioner in each case 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 Crl.R.P.Nos.185 & 186 of 2008 5 courts below in these two cases, he is sentenced in each case to undergo imprisonment till rising of court. He is further directed in each case to pay an amount of Rs.3,15,000/- (Rupees Three lakhs fifteen thousand only) as compensation and in default to undergo S.I for a period of 2 months. If realised, an amount of Rs.3 lakhs in each case shall be creditted towards the principal liability under the cheque and the further amount of Rs.15,000/- each shall be creditted to cost and compensation incurred in the prosecutions of the two tier litigation in these criminal cases. 12. Needless to say the compensation amount if paid shall be given due credit to and the civil court shall take note of such payment if any made on the basis of this order. 13. The learned counsel for the petitioner finally prays that some further time may be granted to the petitioner to raise and make the payment and thus avoid the default sentence. The civil suit has not been decreed yet, it is submitted. I do not find much grace or merit in the prayer for further time to make the payment. I am satisfied, that a breathing time can be however given to the petitioner to raise and pay the amount and avoid the default sentence. It is hence directed that the modified sentence hereby imposed shall not be executed till 31.03.08. The petitioner shall have time till that date to make the payment and avoid the default sentence. On or before 01.04.08, the petitioner shall Crl.R.P.Nos.185 & 186 of 2008 6 appear and his sureties shall produce him before the learned Magistrate for execution of the modified sentence hereby imposed. (R.BASANT, JUDGE) rtr/-