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V.A. KURIAN, VALLIPARAMBIL versus V.A. ABRAHAM

High Court of Kerala

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V.A. KURIAN, VALLIPARAMBIL v. V.A. ABRAHAM - Crl Rev Pet No. 2415 of 2006 [2006] RD-KL 246 (14 July 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2415 of 2006()

1. V.A.KURIAN,VALLIPARAMBIL,
... Petitioner

Vs

1. V.A.ABRAHAM,VAZHAPARAMBIL HOUSE,
... Respondent

2. STATE OF KERALA,

For Petitioner :SRI.T.K.SHAJAHAN

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :14/07/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 2415 of 2006
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Dated this the 14th day of July, 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. 45,000/- It is dated 16.4.2003. The signature in the cheque is admitted. Handing over of the cheque is also not disputed. That the cheque was dishonoured on account of insufficiency of funds is not controverted. The notice of demand, though received and acknowledge, did not evoke any response. The complainant examined PW1 and Exts.P1 to P8 were marked. The accused, who did not respond to the notice, in the course of trial attempted to advance a contention that the payments were made and the liability was discharged.

3. The courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in Crl.R.P.No. 2415 of 2006 2 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. 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 reiterates the contentions that were raised before the courts below. According to me, the courts below were justified in not accepting and acting upon the very interested version of DW1. The evidence of DW1 is not inconsistent with the case of the complainant that towards the balance amount due in a transaction, the cheque in question was issued. The learned counsel for the petitioner then attempts to advance a contention that during the pendency of the proceedings payments without voucher have been made. Less said about the contention the better. It would be puerile for any prudent person to swallow that contention in the background of facts in this case. I am satisfied that on the materials available, the verdict of guilty and conviction are absolutely justified and unexceptionable. The challenge must in these Crl.R.P.No. 2415 of 2006 3 circumstances fail.

5. The learned counsel for the petitioner prays that leniency may be shown on the question of sentence. The petitioner now faces a sentence of S.I. for a period of three months. There is a direction to pay an amount of Rs.45,000/- as compensation and in default to undergo S.I. for a further period of one month.

6. 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 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.

7. 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. Crl.R.P.No. 2415 of 2006 4

8. 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.55,000/- 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.

9. 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) Crl.R.P.No. 2415 of 2006 5 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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