IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 Crl.Rev.Pet.No. 301 of 2002() ----------------------------- CRA.135/1998 of ADDL.SESSIONS COURT, KOTTAYAM CC.476/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- GIGI, S/O.JOSE, AGED 33, ADACKATTU VEEDU, VELLICHAYANI KARA, EDDAKUNNAM. BY ADV. SRI.C.J.JOY RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. JOSEPH THOMAS, AGED 45, RESIDING AT PUTHIYAPARAMBIL, VETTIKANNAM KARA, KOOTTICKAL. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.J.THOMAS FOR R1 PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.301 of 2002 ------------------------------------- Dated this the 16th day of March, 2009 ORDER In this revision petition, the accused assails the 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 6 months. No direction for payment of fine or compensation is issued. 2. The prosecution relates to 2 cheques, each of Rs.40,000/- issued by the accused to the complainant. Signatures in the cheques are admitted. The cheques when presented were dishonoured by the bank on the ground of insufficiency of funds. Notice of demand Ext.P5 was duly despatched and acknowledged under Ext.P6. The same did not evoke any response. It is, in these circumstances, that the complainant came to court with a complaint under Section 138 of the Negotiable Instruments Act observing the statutory time table scrupulously. The complainant examined himself as PW1 and proved Exts.P1 to P11. 3. In the course of cross examination the accused took up a contention that the cheques were issued not for the due discharge of a legally enforcible debt/liability. It was contended Crl.R.P No.301 of 2002 2 that the cheques were stealthily obtained by the complainant from the accused on the promise that he shall make visa for employment abroad available to the accused. There was later a disagreement/dispute between the accused and the complainant regarding construction of a road. On account of that animosity the cheques were being misutilised by the complainant to stake a false claim, it was contended. 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. There is no representation for the revision petitioner. The learned counsel for the respondent has been heard. I have been taken through the impugned judgments. I have gone through the Memorandum of Revision. The verdict of guilty and conviction are assailed on the ground that the cheques were not issued for the due discharge of any legally enforcible debt/liability. 6. The less said about this contention, the better. Signatures in Exts.P1 and P2 are not disputed. Handing over of Crl.R.P No.301 of 2002 3 the cheques is also not disputed. We have the oral evidence of PW1 to explain the circumstance under which Exts.P1 and P2 were received by the complainant. The presumption under Section 139 of the Negotiable Instruments Act does also stare at the petitioner/accused. The conduct of the accused of not responding to Ext.P5 notice corroborates the version of the complainant convincingly. Though a vague and general plea is raised that cheques were obtained for the purpose of securing employment abroad for the accused, there is nothing to substantiate such a plea. That suggestion thrown at PW1 when he was facing the cross examination is not even asserted by the accused in the 313 statement given by him. 7. I do not, in these circumstances, find any merit in the challenge raised against the verdict of guilty and conviction under Section 138 of the Negotiable Instruments Act on merits. The challenge on merit must hence fail. 8. There is a contention that the sentence imposed is excessive. The prosecution is under Section 138 of the Negotiable Instruments Act. Cheques are for a total amount of Rs.80,000/-. Cheques were issued as early as in 1996. I have already adverted to the principles governing imposition of Crl.R.P No.301 of 2002 4 sentence in a prosecution under Section 138 of the N.I.Act in the decision in Anilkumar vs.Shammi [2002(3)KLT 852]. I am satisfied that leniency can be shown on the question of sentence after zealously ensuring that the complainant who has been compelled to fight three rounds of legal battle and wait from 1996 is adequately compensated. 9. 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.1,00,000/- (Rupees one lakh 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. 10. The petitioner shall have time till 30/04/2009 to make the payment. The impugned sentence shall not be executed till that date. The petitioner shall appear and his sureties shall Crl.R.P No.301 of 2002 5 produce him before the learned Magistrate on or before 02/05/2009 to serve the modified sentence hereby imposed. (R.BASANT, JUDGE)