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DR.S. MOHAN versus V. DIVAKARAN NAIR

High Court of Kerala

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DR.S. MOHAN v. V. DIVAKARAN NAIR - Crl Rev Pet No. 3062 of 2006 [2006] RD-KL 1468 (31 October 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 3062 of 2006()

1. DR.S.MOHAN, S/O.S.PILLAI,
... Petitioner

Vs

1. V.DIVAKARAN NAIR, AGED 57 YEARS,
... Respondent

2. STATE OF KERALA, REPRESENTED BY THE

For Petitioner :SRI.SUNNY MATHEW

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. 3062 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. 80,000/-. It bears the date 8.1.2002. The petitioner, after the appellate modification of the sentence, now faces a sentence of S.I. for a period of one month. There is also a direction to pay an amount of Rs. 82,000/- as compensation and in default to undergo S.I. for a further period of two months.

3. The signature in the cheque is admitted. The notice of demand, though duly received and acknowledged, did not succeed in ensuring any payment. A reply notice, Ext.P5, was sent raising the contention that the cheque was not issued for the due discharge of any legally enforcible debt/liability, but was issued as security Crl.R.P.No. 3062 of 2006 2 when an amount of Rs.20,000/- was borrowed from the complainant. A blank signed cheque was insisted and handed over. Though an amount of Rs.15,000/- was allegedly repaid and only an amount of Rs.5,000/- remains to be paid, the complainant was misutilising the blank signed cheque leaf handed over to him to stake a totally false and untenable claim. The complainant examined PW1 and proved Exts.P1 to P6. The accused did not adduce any evidence whatsoever.

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 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 Crl.R.P.No. 3062 of 2006 3 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 merit in the prayer for leniency. 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). In the facts and circumstances of the case, I do not find any compelling reasons which can persuade this court to insist on imposition of any deterrent substantive sentence of imprisonment on the petitioner. Leniency can be shown on the question of sentence, but subject to the compulsion of ensuring adequate and just compensation to the victim/complainant, who has been compelled to wait from 2002 and to fight two rounds of unnecessary legal battle for the redressal of his genuine grievances. The challenge can succeed only to the above extent. Crl.R.P.No. 3062 of 2006 4

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 undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C. to pay an amount of Rs.87,500/- (Rupees eighty seven thousand five hundred only) as compensation and in default to undergo S.I. for a period of two months. If realised the entire amount shall be released to the complainant.

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. Crl.R.P.No. 3062 of 2006 5 (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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