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V.K. KRISHNA KURUPS versus HASHIM

High Court of Kerala

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V.K. KRISHNA KURUPS v. HASHIM - Crl Rev Pet No. 565 of 2002 [2006] RD-KL 1291 (18 October 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 565 of 2002()

1. V.K.KRISHNA KURUPS/O.RAMAN NAMBIAR,
... Petitioner

Vs

1. HASHIM S/O.UMMERKUTTY,ETAKANNIYARATH
... Respondent

2. STATE OF KERALA,REPRESENTED BY

For Petitioner :SRI.R.PARTHASARATHY

For Respondent :SRI.T.G.RAJENDRAN

The Hon'ble MR. Justice R.BASANT

Dated :18/10/2006

O R D E R

R. BASANT, J.

CRL.R.P.NO. 565 OF 2002

Dated this the 18th day of October, 2006

ORDER

This revision petition is filed by the complainant in a prosecution under Sec.138 of the N.I. Act complaining about the sentence imposed on the respondent/accused by the appellate court.

2. The cheque is for an amount of Rs.10,000/-. It bears the date 15/6/1998. The trial court imposed a sentence of fine of Rs.13,000/- and in default, to undergo simple imprisonment for a period of three months. The petitioner was not aggrieved by that direction. But the appellate court obviously taking note of Sec.29 of the Cr.P.C. took the view that the Magistrate could not impose a sentence of fine in excess of Rs.5,000/- and therefore, modified the fine to one of Rs.5,000/-. The petitioner has come to this Court with a request to invoke the powers of this Court to modify the sentence to ensure justice to him.

3. The learned counsel have been heard. I am certainly in agreement with the learned counsel for the CRL.R.P.NO. 565 OF 2002 2 petitioner that the sentence imposed is grossly inadequate and is perversely disproportionate to the offence committed. If in respect of an offence committed under Sec.138 of the N.I. Act in respect of a cheque for Rs.10,000/- only a fine of Rs.5,000/- is imposed, the accused must indeed be immensely pleased and thrilled by such a sentence. He can go on committing such offences with impunity in that event.

4. The learned counsel for the petitioner relying on the decision reported in Jayarajan v. Muhammed & Another (1999 (1) KLJ 458) submits that the complainant in a private complaint does not have any right of appeal against the sentence alone and therefore a revision at his instance against the sentence is perfectly justified and this Court will be justified in invoking the revisional powers for appropriate modification of the sentence including an enhancement of sentence. I find merit in the submission. The learned counsel for the respondent/ accused only prays that maximum leniency may be shown to the accused and the accused may not be compelled to undergo any deterrent substantive sentence of imprisonment.

5. I have already adverted to the principles governing imposition of sentence in a prosecution under Sec.138 of the N.I. CRL.R.P.NO. 565 OF 2002 3 Act in the decision reported in Anilkumar v. Shammy (2002 (3) K.L.T. 852). I am not satisfied that there are any compelling circumstances available in this case which would justify the imposition of any deterrent substantive sentence of imprisonment on the petitioner. Leniency can be shown on the question of sentence. But at the same time the courts cannot ignore the plight of the respondent/complainant who has been compelled to fight three rounds of legal battle and wait from 1998 for the redressal of his genuine grievance. An appropriate direction for payment of compensation coupled with a lenient substantive sentence of imprisonment shall meet the ends of justice, I am satisfied. The challenge in this revision petition can succeed only to the above extent.

6. In the result:

(a) This Criminal Revision Petition is allowed in part.

(b) The impugned verdict of guilty and conviction of the petitioner under Sec.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 Sec.357(3) of the Cr.P.C. CRL.R.P.NO. 565 OF 2002 4 to pay an amount of Rs.16,000/- as compensation and in default, to undergo simple imprisonment for a period of 45 days. If realised, the compensation amount shall be released to the petitioner/complainant.

7. The respondent/accused shall appear before the learned Magistrate on or before 30/11/06 to serve the modified sentence. The sentence shall not be executed till that date. If the accused does not appear before the learned Magistrate as directed, the learned Magistrate shall thereafter take steps to execute the modified sentence. Sd/-

(R. BASANT, JUDGE)

Nan/ //true copy// P.S. to Judge CRL.R.P.NO. 565 OF 2002 5


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