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DEVAKI versus NOBLE FINANCE COMPANY

High Court of Kerala

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DEVAKI v. NOBLE FINANCE COMPANY - Crl Rev Pet No. 2531 of 2006 [2006] RD-KL 349 (26 July 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2531 of 2006()

1. DEVAKI, W/O.PRABHAKARAN,
... Petitioner

Vs

1. NOBLE FINANCE COMPANY,THODUPUZYA,
... Respondent

2. STATE OF KERALA REPRESENTED BY THE

For Petitioner :SRI.JOSE JOSEPH ARAYAKUNNEL

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :26/07/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 2531 of 2006
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Dated this the 26th 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. 62,000/- It bears the date 20.3.2004. The signature in the cheque is admitted. The notice of demand, though received and acknowledge, did not evoke any response. The complainant examined PW1. Exts.P1 to P6 were marked. The accused examined DWs.1 to 3 and proved Exts.D1 and D2. The short contention urged by the accused was that the cheque was not issued for the discharge of any legally enforcible debt/liability, but was issued only as security. Partial discharge was also pleaded.

3. The courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in Crl.R.P.No. 2531 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 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. 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.

5. Coming to the question of sentence, the courts below have imposed only a fine of Rs.70,000/- and a default sentence of S.I. for six months. The learned counsel for the petitioner prays that leniency may be shown on the question of sentence. The trial was held before the Chief Judicial Magistrate, who, in law is competent to impose any sentence of Crl.R.P.No. 2531 of 2006 3 fine. The complainant has been compelled to wait from 2004 and to fight two rounds of legal battle for the redressal of his grievances. The sentence imposed, according to me, cannot by any stretch of imagination be held to be excessive. The counsel prays that the default sentence may be reduced and some further time may be given to the petitioner to make the payment and avoid the default sentence. I find that the said request can be accepted, though a long further time for payment cannot also be granted. The default sentence can be reduced also.

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, conviction and sentence imposed on the petitioner under Section 138 of the N.I. Act are upheld. Out of the fine amount, if realised, an amount of Rs.68,000/- shall be released to the complainant as compensation under Section 357(1) Cr.P.C. The default sentence is reduced to S.I. for a period of three months.

8. The petitioner shall appear before the learned Magistrate on or Crl.R.P.No. 2531 of 2006 4 before 30.9.2006 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.

9. It is submitted that there is a decree passed by the civil court for the amount covered by the cheque in question. It is made clear that if the amount is realised, an amount of Rs.62,000/- shall be credited to the principal amount due under the cheque and the balance shall be credited towards the expenses incurred in connection with this two tier criminal litigation. (R. BASANT) Judge tm


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