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M.K. ABDUL AZIZ v. M. MUSTAFA - Crl Rev Pet No. 2398 of 2006  RD-KL 231 (14 July 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 2398 of 2006()
1. M.K.ABDUL AZIZ, AGED 54 YRS,
1. M.MUSTAFA, S/O. ABDULLA,
2. STATE OF KERALA, REP. BY
For Petitioner :SRI.V.M.KURIAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
O R D E R
R. BASANT, J.
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Crl.R.P.No. 2398 of 2006
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Dated this the 14th 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. 1,50,000/- The signature in the cheque is admitted. Handing over of the cheque is also not disputed. The notice of demand, which was duly received and acknowledged, succeeded in getting only Ext.P6 reply, in which an assertion is made that the cheque was stolen from the possession of the complainant some how. The complainant examined PW1 and Exts.P1 to P7 were marked. The accused examined himself as DW1. The case of the accused went on undergoing transformation. He asserted in Ext.P6 that the cheque was stolen. In the course of cross examination he suggested that the cheque was not issued for the discharge of any legally enforcible debt/liability, but Crl.R.P.No. 2398 of 2006 2 only as a loan/financial help to the complainant. When the accused examined himself as DW1 yet another defence is taken with the help of Ext.D1. According to him, Ext.P1 cheque was returned when Ext.D1 cheque was given and that when Ext.D1 cheque was returned the complainant had made an endorsement that it was not for amounts due to him. Surprisingly the complainant, when he was in the witness box, was not confronted with Ext.D1 at all.
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 Section 138 of the N.I. Act. and that the accused has not succeeded in discharging the burden, which is there on him. 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 submits that the courts below erred in accepting and acting upon the oral evidence of PW1. The accused is entitled to take up inconsistent defences. The fact that a different version Crl.R.P.No. 2398 of 2006 3 has been narrated in Ext.P6 and in the course of cross examination of PW1 and later when DW1 was examined, will not in any way dis-entitle the accused to simultaneously take up all the contentions. In these circumstances it is prayed that benefit of doubt deserves to be granted in favour of the petitioner. He further submits that the petitioner did not get an opportunity to confront PW1 with Ext.D1 and therefore a further opportunity may be granted, it is prayed. No explanation is offered as to why PW1 was not confronted with Ext.D1 when he was in the witness box. I find absolutely no merit in this contention.
5. Primarily we have the oral evidence of PW1 about the circumstances under which the cheque leaf issued to the petitioner by his bank to operate his account with the signature of the petitioner thereon found its way from the possession of the petitioner to the possession of PW1. His evidence is entitled to respect considering that circumstance. The accused has taken up inconsistent and contradictory defences. Of course, the principles of criminal law perhaps do permit an indictee to simultaneously take up a defence alibi and of private defence. But those Crl.R.P.No. 2398 of 2006 4 principles cannot obviously be imported blindly in a prosecution under Section 138 of the N.I. Act, where the presumption under Section 139 stares at the accused and it is for him to "prove" his case and rebut the presumption". It is idle now to contend that inconsistent defences can be taken up by an accused in a prosecution under Section 138 of the N.I. Act. In theory this is correct, but in its practical application one cannot ignore the fact that the burden on the accused must be held to be not discharged when such irresponsible and contradictory defences are raised. The petitioner is not entitled to succeed. No other contentions are raised on merits.
6. The learned counsel for the petitioner prays leniency may be shown on the question of sentence. The petitioner now faces a sentence of S.I. for a period of three months and to pay an amount of Rs.1,30,000/- as compensation. I find merit in the prayer for leniency, notwithstanding the fact that irresponsible defence has been taken up by the accused.
7. 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 Crl.R.P.No. 2398 of 2006 5 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 zealously ensured the complainant, who has been compelled to wait from May, 2000 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.
8. 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.
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.1,80,000/- Crl.R.P.No. 2398 of 2006 6 as compensation and in default to undergo S.I. for a period of three months. If realised the entire amount shall be released to the complainant.
10. 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) tm Judge
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