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D. RAJAN versus RAHIMA SALIM

High Court of Kerala

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D. RAJAN v. RAHIMA SALIM - Crl Rev Pet No. 3817 of 2006 [2006] RD-KL 1467 (31 October 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 3817 of 2006()

1. D.RAJAN
... Petitioner

Vs

1. RAHIMA SALIM
... Respondent

For Petitioner :SRI.C.K.SAJEEV

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :31/10/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 3817 of 2006
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Dated this the 31st day of October, 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. 75,000/-. It bears the date 7.2.2003. The petitioner now faces a sentence of fine of Rs. 1 lakh and in default to undergo S.I. for a period of six months.

3. 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 and proved Exts.P1 to P6. The accused examined himself as DW2 and the Manager of the bank as DW1. Exts.D1 to D4 were marked.

4. 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. 3817 of 2006 2 Section 138 of the N.I. Act. Accordingly they proceeded to pass the impugned concurrent judgments.

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 does not strain to assail the verdict of guilty and conviction on merits. He only prays that leniency may be shown on the question of sentence and some time may be granted to the petitioner to discharge the liability and avoid the default sentence.

6. Having gone through the impugned concurrent judgments, I reckon that as an informed and fair stand taken by the learned counsel for the petitioner. In the absence of challenge on any specific ground against the verdict of guilty and conviction, I am satisfied that it is not necessary for me to advert to the facts in any greater detail in this order. I am satisfied that the verdict of guilty and conviction are absolutely justified and unexceptionable.

7. Coming to the question of sentence, I find that a fine of Rs. 1 lakh is only imposed. The cheque is for an amount of Rs.70,000/- The complainant has been compelled to wait from 2003 and to fight two Crl.R.P.No. 3817 of 2006 3 rounds of unnecessary legal battle for the redressal of his genuine grievances. He deserves to be compensated. I am satisfied that the sentence of fine can accordingly be modified after ensuring the interests of duly compensating the victim. I further note that the default sentence imposed violates the mandate of Section 30 Cr.P.C. The default sentence also deserves to be modified.

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.

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. ) 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 pay a fine of Rs.90,000/-(Rupees ninety thousand only) and in default to undergo S.I. for a period of two months. If realised, an amount of Rs. 85,000/- shall be released to the complainant as Crl.R.P.No. 3817 of 2006 4 compensation under Section 357(1) Cr.P.C.

9. The petitioner shall appear before the learned Magistrate on or before 30.12.2006 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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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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