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MATHEW P. VARGHESE v. N.C.PHILIP, NAIPOLLYCHIRAYIL VEEDU - Crl Rev Pet No. 629 of 2006  RD-KL 120 (6 July 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 629 of 2006()
1. N.C.PHILIP, NAIPOLLYCHIRAYIL VEEDU,
2. STATE OF KERALA,
For Petitioner :SRI.M.R.ARUN KUMAR
For Respondent :SRI.M.V.MATHEW
The Hon'ble MR. Justice R.BASANT
O R D E R
R. BASANT, J.
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Crl.R.P.No. 629 of 2006
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Dated this the 6th day of July, 2006
O R D E RThis 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. 1,00,000/- The signature in the cheque is admitted. The notice of demand, though duly received and acknowledged, did not evoke any response. The complainant examined himself as PW1. Exts.P1 to P5 were marked. The accused did not adduce any defence evidence. The accused raised a contention that the cheque was not issued for the due discharge of any legally enforcible debt/liability, but it was issued only as security for a totally different transaction. It was handed over not to the complainant, but to another person, it was contended.
3. The courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in Crl.R.P.No. 629 of 2006 2 establishing all 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 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. 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, learned counsel for the petitioner prays that leniency may be shown and the petitioner may be spared of a harsh substantive sentence of imprisonment. 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 in this case which would justify or warrant imposition Crl.R.P.No. 629 of 2006 3 of any deterrent 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 2002 and to fight three 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.1,20,000/- Crl.R.P.No. 629 of 2006 4 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.
8. The petitioner shall appear before the learned Magistrate on or before 16.8.2006 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
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