IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 Crl.Rev.Pet.No. 237 of 2008() ----------------------------- CRA.366/2002 of ADDL.SESSIONS COURT (ADHOC)-III, THALASSERY CC.494/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... REVN. PETITIONER: PETITIONER/APPELLANT/ACCUSED ---------------------------------------------- JAFFER.K., S/O.MAMMU, AGED 43 YEARS, J.F.C. FRUITS, TALIPARAMBA MARKET, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI RESPONDENTS: COMPLAINANT ------------------------ 1. VALSARAJ, S/O.SUKUMARAN, NARAYANA NILAYAM, THAYYIL, KANNUR TALUK, KANNUR DISTRICT. 2. THE 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 01/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.237 of 2008 ---------------------------------------- Dated this the 1st day of February 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.1,50,000/-. It bears the date 24/05/2000. The petitioner now faces a sentence S.I for a period of six months. There is no direction to pay any amount of fine or compensation. 2. The signature in the cheque is admitted. Handing over of the cheque after affixing the signature is also admitted. The short contention raised was that the cheque was not handed over to the complainant for the due discharge of any legally enforcible debt/ liability; but was issued to another person as security. That liability had been discharged. But the cheque was not returned and the same has been misutilised by the complainant to file this case. The complainant examined himself as PW1 and proved Exts.P1 to P7. The petitioner examined a witness to prove discharge as DW1 and the Manager of the Bank as DW2. Exts.D1 to D3 were marked. Crl.R.P.No.237/08 2 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. The petitioner claims to be aggrieved by the impugned concurrent judgments. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned 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. The petitioner shall reasonably compensate the complainant. Sometime may be granted to the petitioner to make such payment of compensation, it is prayed. 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 legally 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. Crl.R.P.No.237/08 3 6. Coming to the question of sentence, I note that the courts below have imposed only a deterrent substantive sentence of imprisonment for six months. No reasons are shown as to why the complainant has not been compensated and as to why no such directions are issued. It is also not possible to ascertain why such a deterrent substantive sentence of imprisonment has been imposed. 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 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. I am satisfied that leniency can be shown to the petitioner. I accept the submission of the learned counsel for the petitioner that the petitioner is willing to compensate the complainant adequately. An appropriate lenient substantive sentence of imprisonment coupled with appropriate direction for compensation shall meet the ends of justice eminently. 8. 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. Crl.R.P.No.237/08 4 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.1,52,000/- (Rupees one lakh fifty two 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. 10. The petitioner shall have time till 31/03/2008 to raise and 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 01/04/2008 to serve the modified sentence hereby imposed. If the petitioner does not so appear before the learned Magistrate on or before 01/04/2008, the learned Magistrate shall thereafter proceed to execute the modified sentence hereby imposed. (R.BASANT, JUDGE) jsr Crl.R.P.No.237/08 5 Crl.R.P.No.237/08 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