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K.C. RADHAKRISHNAN v. M.M. KURIAN - Crl Rev Pet No. 2406 of 2006  RD-KL 191 (12 July 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 2406 of 2006()
For Petitioner :SRI.GRASHIOUS KURIAKOSE
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. 2406 of 2006
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Dated this the 12th 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. 50,000/- It is dated 17.3.2003. The signature in the cheque is admitted. Handing over of the cheque is also not disputed. The notice of demand, though duly received and acknowledge, did not evoke any response. The complainant examined PW1 and Exts.P1 to P4 were marked. The accused did not adduce any defence evidence. The only defence urged by the accused was that the cheque was issued not for the discharge of any legally enforcible debt/liability, but only as security.
3. 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. 2406 of 2006 2 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 only prays that leniency may be shown on the question of sentence. The petitioner now faces a sentence of S.I. for a period of one month. There is a direction to pay an amount of Rs.50,000/- as compensation and in default to undergo S.I. for a further period of one month. In as much as there is no challenge against the verdict of guilty and conviction, it is not necessary for me to advert to facts in any greater detail in this order. I am satisfied that on the materials available, the verdict of guilty and conviction are absolutely justified and unexceptionable.
5. Coming to the question of sentence, 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 find no compelling reasons which would justify or warrant imposition of any deterrent substantive sentence of imprisonment Crl.R.P.No. 2406 of 2006 3 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 March, 2003 and to fight two rounds of legal battle for the redressal of his grievances is adequately compensated. 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.60,000/- as compensation and in default to undergo S.I. for a period of 45 days. If realised the entire amount shall be released to the complainant. Crl.R.P.No. 2406 of 2006 4
8. The petitioner shall appear before the learned Magistrate on or before 1.9.2006 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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