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PRADEEP v. P.A. CHELLAPPAN - Crl Rev Pet No. 155 of 1999  RD-KL 378 (1 August 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 155 of 1999()
For Petitioner :SRI.K.GOPALAKRISHNA KURUP
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. 155 of 1999
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Dated this the 1st day of August, 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 complainant died during the pendency of the appeal and the second respondent, his son, has been brought on the array of parties as the legal heir of the deceased complainant. Though notice was ordered to him, service is not complete and the revision petition has come up in the defect list for consideration today.
3. The learned counsel for the petitioner was requested to advance detailed arguments as this court felt that it is not necessary to wait any further for service and return of notice to the second respondent.
4. The learned counsel for the petitioner does not strain to assail the verdict of guilty and conviction on merits. The cheque is Crl.R.P.No. 155 of 1999 2 for an amount of Rs. 11,360/- The complainant examined himself as PW1 and a witness as PW2. Exts.P1 to P5 were also marked. No defence evidence was adduced by the petitioner/accused.
5. 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. Accordingly they proceeded to pass the impugned concurrent judgments.
6. 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. 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.
7. Coming to the question of sentence, I find merit in the prayer for leniency. I have already adverted to the principles governing imposition of Crl.R.P.No. 155 of 1999 3 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/legal heir is adequately compensated. The challenge can succeed only to the above extent. Of course, the learned counsel for the petitioner raises an objection that the Judicial Magistrate of the First Class has no jurisdictional competence under Section 29 of the Cr.P.C. to impose any sentence of fine exceeding Rs.5,000/- I accept the said challenge. Appropriate modification of the sentence can be resorted to.
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, Crl.R.P.No. 155 of 1999 4 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.17,000/- as compensation and in default to undergo S.I. for a period of one month. If realised the entire amount shall be released to the complainant/his legal heirs.
9. The petitioner shall appear before the learned Magistrate on or before 16.9.2006 to serve the modified sentence hereby imposed. The sentence shall not be executed till that date. Needless to say, amounts, if any deposited already, shall be given due credit to and the same shall be released to the second respondent on behalf of the deceased complainant. 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 Crl.R.P.No. 155 of 1999 5
R. BASANT, J.Crl.R.P.No. 155 of 1999
O R D E RCrl.R.P.No. 155 of 1999 6 1st August, 2006 Crl.R.P.No. 155 of 1999 7
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