IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 Crl.Rev.Pet.No. 214 of 2008() ----------------------------- CRA.268/2003 of II ADDL.SESSIONS COURT, KOLLAM CC.420/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), PUNALUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------ PHILIP, S/O.GEORGE, MULAMOOTTIL HOSPITAL, THENNITHODU.P.O., KONNI, PATHANAMTHITTA DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENTS/COMPLAINANT: ------------- 1. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. J.V.J.VARGHESE, S/O.MATHEW VARGHESE, EDATHUMPADICKAL HOUSE, ALAYAMON, ANCHAL. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.214 of 2008 ---------------------------------------- Dated this the 30th 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 cheque is for an amount of Rs.1,00,000/-. It bears the date 07/12/1998. After indulgent modification of the sentence by the appellate court, the petitioner now faces a sentence of S.I for a period of three months and there is a direction to pay the actual cheque amount of Rs.1,00,000/- as compensation under Section 357(3) Cr.P.C and in default to undergo S.I for a period of one month. 2. The signature in the cheque is admitted. Notice of demand though duly received and acknowledged did not evoke any response. The accused did not adduce any defence evidence. 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 Crl.R.P.No.214/2008 2 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. Some further time may be granted to the petitioner to raise and pay the amount of compensation and thus avoid the default sentence. 5. 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. 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 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 who has now been compelled Crl.R.P.No.214/2008 3 to fight two rounds of legal battle and to wait from 1998 for the redressal of his grievances. The challenge can succeed only to the above extent. 7. 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.1,20,000/- (Rupees one lakh twenty 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 is said to be undergoing imprisonment now in execution of the sentence imposed. I am satisfied that subject to appropriate conditions, the petitioner can be given further time to make the payment and avoid the default Crl.R.P.No.214/2008 4 sentence. It is hence directed that if the petitioner executes a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate and deposits an amount of Rs.25,000/- (Rupees twenty five thousand only), the petitioner shall be released from custody forthwith on condition that he shall appear and his sureties shall produce him before the learned Magistrate on or before 01/04/2008 for execution of the sentence. By then, the petitioner can raise and pay the amount and avoid the default sentence. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) jsr Crl.R.P.No.214/2008 5 Crl.R.P.No.214/2008 6 R.BASANT, J Crl.M.A.Nos.21 & 65 of 2008 in Crl.R.P.No.765 of 2007 ORDER 17th DAY OF JANUARY 2008