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A. ISHAQUE v. N.V.RAMACHANDRAN - Crl Rev Pet No. 2119 of 2006  RD-KL 130 (7 July 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 2119 of 2006()
1. A.ISHAQUE, S/O.NOORUDIN,
1. N.V.RAMACHANDRAN, S/O.RAMAN,
2. STATE OF KERALA, REPRESENTED BY ITS
For Petitioner :SRI.R.SURENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
O R D E R
R. BASANT, J.
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Crl.R.P.No. 2119 of 2006
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Dated this the 7th 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. 15,000/- The signature in the cheque, I must say, is not specifically disputed. Handing over of the cheque is also not disputed. The notice of demand, though duly received and acknowledged, did not evoke any response. The complainant examined himself as PW1 and Exts.P1 to P3 series were marked. The accused examined DW1, a stranger, who was admittedly not able to throw any acceptable light on the controversy. The accused raised a contention in the course of the trial that the cheque was not issued for the discharge of any legally enforcible debt/liability, but was issued as security when the brother of the accused availed a loan. Crl.R.P.No. 2119 of 2006 2
3. The courts below concurrently came to the conclusion that the complainant has succeeded in 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. The respondent has not entered appearance. When the matter came up for extension of suspension, the learned counsel for the petitioner was requested to and has advanced detailed arguments.
5. 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 submits that there is no satisfactory evidence to prove execution of Ext.P1 cheque. The complainant himself was unable to assert that the signature appearing on Ext.P1 is that of the accused. Much is attempted to be made out of this statement made by PW1 in the course of cross examination.
6. We have the evidence of PW1 that the cheque duly filled up was handed over to him by the accused. The very case of the accused is in this context relevant. It is his case that blank signed cheque was handed over as security. It would be puerile and naive to assume that the contention raised by the accused is that a blank unsigned cheque was handed over by Crl.R.P.No. 2119 of 2006 2 him. There is no denial of the signature in the cheque. It is true (I have been taken through the evidence of the complainant), that the complainant who asserted that the cheque duly filled up was brought by the accused and handed over to him, stated that he cannot assert that the signature is that of the accused. That is quite natural. A person who has not seen the drawer of the cheque signing on it cannot say that it was his signature. It is significant to note that the cheque was dishonoured not on the ground that the signature does not tally with the signature of the accused. No worthwhile attempt is seen made in the course of the trial to seriously dispute the signature in Ext.P1. As adverted to by me earlier, the defence set up by the accused necessarily implies that the signature in the cheque is that of his. Admittedly the evidence of DW1 is insufficient to throw any light on the controversy. I am satisfied that the verdict of guilty and conviction are, in these circumstances, absolutely justified and unexceptionable.
7. The learned counsel for the petitioner then contends that the sentence imposed is excessive. It is improper and irregular also, it is contended. I need not advert to this contention in detail. The appellate court appears to have maintained the substantive sentence of imprisonment Crl.R.P.No. 2119 of 2006 2 imposed by the trial court, but enhanced the quantum of compensation. Be that as it may, I am satisfied that leniency can be shown on the question of sentence and the substantive sentence of imprisonment imposed by the trial court and upheld by the appellate court can be modified and reduced.
8. 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 substantive sentence of imprisonment on the petitioner. Leniency can be shown on the question of sentence. It will have to be ensured that the complainant, who has been compelled to wait from 1997 and to fight two rounds of legal battle for the redressal of his grievances is adequately compensated. Subject to the accommodation of the component of adequate 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.
9. 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.
10. In the result:
Crl.R.P.No. 2119 of 2006 2
(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.22,500/- as compensation and in default to undergo S.I. for a period of one month. If realised the entire amount shall be released to the complainant.
11. 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 Crl.R.P.No. 2119 of 2006 2 tm
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