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UNNIMOIDU v. STATE OF KERALA - Crl Rev Pet No. 1849 of 2004(A) [2006] RD-KL 327 (20 July 2006)


Crl Rev Pet No. 1849 of 2004(A)

... Petitioner


... Respondent




The Hon'ble MR. Justice R.BASANT

Dated :20/07/2006



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Crl.R.P.No. 1849 of 2004
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Dated this the 20th day of July, 2006


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.1,50,000/- Signature in the cheque is not disputed. That the cheque is drawn on a cheque leaf issued to the petitioner by his bank to operate his account is not disputed. The notice of demand was duly received and acknowledged. It evoked Ext.P6 reply. No payment was made. In the reply it was contended that the cheque leaf was lost from the possession of the petitioner. He had effected public notice by publication in a news paper. Thereafter the complainant, a friend of the petitioner, had some how come into possession of the cheque. He had thereafter misused the cheque to stake a false claim. This in short is the defence urged. The complainant examined himself as Crl.R.P.No. 1849 of 2004 2 PW1 and Exts.P1 to P6 were proved. The accused did not adduce any defence evidence.

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 establishing his improbable and artificial defence. Accordingly they proceeded to pass the impugned concurrent judgments.

4. Before me the counsel for the rival contestants have advanced their arguments. The learned counsel for the petitioner reiterates the contentions that were raised before the courts below. Certain circumstances do appear to me to be vital and crucial. No satisfactory explanation whatsoever was attempted to be offered as to how the cheque leaf was lost. Except to say that the petitioner some how came into possession of the lost cheque leaf, there is absolutely no tangible data which can indicate or probabilise such a defence. No stop payment memo has been issued. No publication is shown to have been effected as contended by the petitioner. No defence evidence whatsoever has been adduced. The conclusion Crl.R.P.No. 1849 of 2004 3 appears to be inevitable in these circumstances that the petitioner is attempting to play for time to avoid the liability to make payments under the cheque. The defence is improbable. The unsubstantiated defence rebels against common sense.

5. Finally the counsel prays that the accused may be given a further opportunity to substantiate his contentions. It is not explained why the available opportunity was not taken advantage of. No circumstances are shown to exist justifying the failure to take steps to produce the publication before the trial court, appellate court or atleast before this Court if any such paper publication had actually been made. No explanation is offered also for the improbable conduct of not issuing a stop payment memo to the bank and before that effecting a paper publication. The theory of paper publication is inherently improbable and to facilitate such evidence being introduced the prayer for remand cannot be entertained. The sequence of events clearly show that it was not a case of the horse not being taken to water and it was a case definitely of the horse refusing to drink water. After S.313 statement, the case was posted for defence evidence on 14.2.03 and then as a last chance on 28.2.03 and it was only thereafter that the learned Crl.R.P.No. 1849 of 2004 4 Magistrate noted that there is no defence evidence for the petitioner. The challenge raised on merits must and does in these circumstances fail.

6. The learned counsel prays that leniency may be shown on the question of sentence. Half the amount has already been deposited before the court below, it is urged. The petitioner faces a sentence of S.I. for a period of three months and to pay the actual cheque amount of Rs.1.5 lakhs as compensation. 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 am not satisfied that there are any 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 that the complainant, who has been compelled to wait from 2003 and to fight three rounds of legal battle for the redressal of his grievances is adequately compensated. Subject to the requirement of accommodating the component of adequate reparation of the victim, leniency can be shown. The challenge can succeed only to the above extent. Crl.R.P.No. 1849 of 2004 5

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.1,80,000/- 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. Needless to say, amounts, if any, already deposited shall be given due credit to and such amount shall forthwith be released to the complainant.

8. The petitioner shall appear before the learned Magistrate on or before 6.9.2006 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. Crl.R.P.No. 1849 of 2004 6 (R. BASANT) Judge tm


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