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P.K. SHIBU v. K.V. MOHANAN - Crl Rev Pet No. 2657 of 2006  RD-KL 395 (3 August 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 2657 of 2006()
1. P.K. SHIBU, S/O.LATE GOVINDAN,
1. K.V. MOHANAN, S/O. NARAYANAN,
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.SANTHEEP ANKARATH
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. 2657 of 2006
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Dated this the 3rd 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 cheque is for an amount of Rs. 40,000/- It is dated 20.4.2000. The signature in the cheque is admitted. The notice of demand, though received and acknowledged, did not evoke any response. The complainant examined himself as PW1. Exts.P1 to P6 were marked. 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. Accordingly they proceeded to pass the impugned concurrent judgments. Crl.R.P.No. 2657 of 2006 2
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 challenge the verdict of guilty and conviction on merits. He only prays that leniency may be shown on the question of sentence. I reckon that as an informed and fair stand taken by the petitioner. I am satisfied that the verdict of guilty and conviction are absolutely justified and unexceptionable.
5. Coming to the question of sentence, the petitioner now faces a sentence of S.I. for three months. There is a direction to pay an amount of Rs.42,000/- as compensation. No default sentence is seen imposed. 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 2000 Crl.R.P.No. 2657 of 2006 3 and to fight two rounds of legal battle for the redressal of his grievances is adequately compensated. Subject to the requirement of incorporating the component of reparation of the victim, the sentence/direction can be suitably modified and leniency can be shown. The challenge can succeed only to the above extent.
6. In the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of notice to the respondent.
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.50,000/- as compensation and in default to undergo S.I. for a period of two months. If realised the entire amount shall be released to the complainant. Crl.R.P.No. 2657 of 2006 4
8. The petitioner shall appear before the learned Magistrate on or before 16.10.2006 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) Judge tm
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