IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 24TH JANUARY 2008 / 4TH MAGHA 1929 Crl.Rev.Pet.No. 172 of 2008() ----------------------------- CRA.482/2006 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM CC.1106/2004 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER: PETITIONER/APPELLANT/ACCUSED ---------------------------------------------- SUKUMARAN, MOHANAVILASOM, MUTTOM P.O., HARIPPADU. BY ADV. SRI.A.K.HARIDAS SRI.R.ANILKUMAR RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE -------------------------------------------- 1. SALIMON P.J., SALINIVAS, PANGADA P.O., PAMPADY, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/01/2008, THE COURT ON 24/01/2008 PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.172 of 2008 ---------------------------------------- Dated this the 25th 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 petitioner now faces a sentence of S.I for a period of one year and there is a direction to pay an amount of Rs.1,20,000/- as compensation and in default to undergo S.I for a period of four months. 2. The cheque is for an amount of Rs.1,00,000/-. It bears the date 08/11/2003. The signature in the cheque is admitted. Notice of demand did not evoke any response. The accused examined himself as DW1. The accused took up a contention that the cheque was issued not to the complainant; but to another person as security. 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 Crl.R.P.No.172/08 2 concurrent judgments, the learned counsel for the petitioner does not strain to assail the verdict of guilty and conviction on merits. He prays that leniency may be shown on the question of sentence and he may be given some further time to pay the amount of compensation and avoid the default sentence. 5. Having gone through the impugned concurrent judgments, I find the verdict of guilty and conviction are 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 to fight two rounds of legal battle and to wait from November 2003 for the redressal of his grievances. The challenge can succeed only to the above extent. In the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of Crl.R.P.No.172/08 3 notice to the respondent. 7. 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.1,22,000/- (Rupees one lakh twenty two thousand only) as compensation and in default, to undergo S.I for a period of four months. If realised, the entire amount shall be released to the complainant as compensation. 8. The petitioner shall have time till 15/03/2008 to make the payment. 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 17/03/2008 to serve the modified sentence hereby imposed. If the petitioner does not so appear before the learned Magistrate on or before 17/03/2008, the learned Magistrate shall thereafter proceed to execute the modified sentence hereby imposed. (R.BASANT, JUDGE) jsr Crl.R.P.No.172/08 4 Crl.R.P.No.172/08 5 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