Kerala High Court
Devasya A.K vs State Of Kerala on 6 July, 2006
Author: R. Basant
Bench: R.Basant
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2338 of 2006()
1. DEVASYA A.K., AGED 50 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. MATHUKUTTY, ANJILAMOOTTIL,
For Petitioner :DR.SEBASTIAN CHAMPAPPILLY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :06/07/2006
O R D E R
R. BASANT, J.
- - - - - - - - - - - - - - - - - - - -
Crl.R.P.No. 2338 of 2006
- - - - - - - - - - - - - - - - - - - -
Dated this the 6th day of July, 2006
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 N.I. Act.
2. The cheque is for an amount of Rs. 11,000/- The signature in the cheque is admitted. Transactions between the parties is also not disputed. The notice of demand, though duly taken to the petitioner by PW2, Postman, the same was returned. The complainant examined himself as PW1 and the postman as PW2. Exts.P1 to P7 were marked. The accused did not adduce any defence evidence. Inconsistent pleas were taken that the cheque was stolen and that it was given as security.
3. The courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under Crl.R.P.No. 2338 of 2006 2 Section 138 of the N.I. Act. Accordingly they proceeded to pass the impugned concurrent judgments.
4. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner does not strain to challenge the verdict of guilty and conviction on merits. He only prays that leniency may be shown on the question of sentence. According to him, the matter cannot be reported as settled now because the complainant is not available in India. There is no case that the matter has actually been settled and composition effected. I am satisfied that the verdict of guilty and conviction are absolutely justified and unexceptionable. In the absence of any challenge on any specific ground, it is not necessary for me to advert to facts in any greater detail in this order.
5. 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 v. Shammy (2002 (3) KLT 852). I am not satisfied that there are any compelling reasons which would justify or warrant imposition of any deterrent Crl.R.P.No. 2338 of 2006 3 substantive sentence of imprisonment on the petitioner. Leniency can be shown on the question of sentence. It will have to be zealously ensured the complainant, who has been compelled to wait from 1999 and to fight two rounds of legal battle for the redressal of his grievances is adequately compensated. Subject to the requirement of incorporating the component of reparation of the victim, the sentence/direction can be suitably modified and leniency can be shown. The challenge can succeed only to the above extent.
6. In the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of notice on 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.
) 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.16,000/- as Crl.R.P.No. 2338 of 2006 4 compensation and in default to undergo S.I. for a period of 45 days. If realised the entire amount shall be released to the complainant.
8. The petitioner shall appear before the learned Magistrate on or before 7.8.2006 to serve the modified sentence hereby imposed. The sentence shall not be executed till that date. If the petitioner does not so appear, the learned Magistrate shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed.
(R. BASANT) Judge tm