IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 Crl.Rev.Pet.No. 18 of 2008() ---------------------------- CRA.162/2007 of ADDL. SESSIONS COURT, ALAPPUZHA CC.184/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II(MOBILE),ALAPPUZHA .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- K.MADHUSOODANAN NAIR, AMBADY VEEDU, AVALOOKKUNNU P.O., ALAPPUZHA-6. BY ADV. SRI.MATHEW JAMES RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE -------------------------------------------- 1. AISWARYA TRUST, KANICHUKULANGARA, REPRESENTED BY THE SECRETARY, D.RADHAKRISHNAN, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.18 of 2008 ---------------------------------------- Dated this the 3rd 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. 2. The petitioner now faces a substantive sentence of S.I for a period of four months and there is a direction to pay an amount of Rs.46,530/- as compensation and in default to undergo S.I for a period of two months. The signature in the cheque is admitted. Handing over of the cheque is not disputed. Dishonour of the cheque is admitted. Notice of demand was returned unclaimed. The complainant examined himself as PW1 and proved Exts.P1 to P9. The accused examined DW1 and proved Ext.D1. 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. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, does not strain to assail the verdict of guilty and conviction. He prays that leniency may be shown on the question of Crl.R.P.No.18/2008 2 sentence. It is therefore prayed that a breathing time may be granted to the petitioner to pay the amount of compensation. 6. Having gone through the impugned concurrent judgments, I reckon that as an informed and fair stand taken by the learned counsel for the petitioner. The verdict of guilty and conviction are found to be absolutely justified and unexceptionable. The contentions raised before the courts below that the cheque was issued under threat and coercion and that it having allegedly been issued for the discharge of a time barred debt/liability under Section 138 of the Negotiable Instruments Act can have no application were according to me rightly rejected by the courts below. In the absence of any serious challenge on any specific grounds, it is not necessary for me to advert to facts in any greater detail in this order. 7. Coming to the question of sentence, the cheque was dated 24/11/2003. The complainant has been compelled to fight two rounds of legal battle and to wait for four years for the redressal of his grievances. 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 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. Subject to the requirement of adequately compensating the complainant, I am satisfied that a lenient view can be taken on the Crl.R.P.No.18/2008 3 question of sentence. 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. 8. 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.55,000/- (Rupees fifty five thousand only) as compensation and in default, to undergo S.I for a period of three months. If realised, the entire amount shall be released to the complainant as compensation. 9. The petitioner shall have time till 29/2/2008 to make the payment. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 01/03/2008 to serve the modified sentence hereby imposed. The impugned sentence shall not be executed till that date. If the petitioner does not so appear before the learned Magistrate on or before 01/03/2008, the learned Magistrate shall thereafter proceed to execute the modified sentence hereby imposed. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.R.P.No.18/2008 4 Crl.R.P.No.18/2008 5 R.BASANT, J C.R.R.P.No. ORDER 21ST DAY OF JULY 2006