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V.V. PAVITHRAN v. V.V. VIJAYAKUMAR - Crl Rev Pet No. 2715 of 2006  RD-KL 436 (8 August 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 2715 of 2006()
1. V.V.PAVITHRAN, S/O.ACHUTHA MARAR,
1. V.V.VIJAYAKUMAR, S/O.ARAVINDAKSHAN,
2. STATE OF KERALA, REP. BY ITS
For Petitioner :SRI.M.RAMESH CHANDER
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. 2715 of 2006
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Dated this the 8th day of August, 2006
O R D E RThis revision petition is directed against the concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act.
2. There are two cheques involved, each for Rs.75,000/-, which are marked as Ext.P1 series dt. 9.10.1998 and 10.10.98. Signatures in the cheques are admitted. Handing over of the cheques by the petitioner to the complainant after affixing the signatures is not disputed. That the cheques were dishonoured on the ground of insufficiency of funds is again not disputed. The notice of demand, though duly received and acknowledged, had succeeded in evoking only Ext.P6 reply. The complainant came to court observing the statutory time table scrupulously. The complainant examined himself as PW1 and the Manager of the drawee bank as PW2. Exts.P1 to P7 were marked. Crl.R.P.No. 2715 of 2006 2
3. The accused took up a plea that the cheques were issued not for the discharge of any legally enforcible debt/liability, but only as security for a loan for a much lesser amount, which he had availed from PW1. There is also a contention that the cheques were issued under duress. DWs. 1 to 3 were examined and Exts.D1 to D4 were marked. DW1 is the office bearer of an Organisation which allegedly works against the blade mafia. Ext.D1 is issued by him to the complainant on coming to know of the alleged misdeeds of PW1 against the petitioner. DW2 is an official of the bank and the attempt made by his examination is to suggest that part of the liability of Rs.65,000/- has already been paid and discharged. The accused examined himself as DW3.
4. The courts below, on an anxious consideration of all the relevant inputs, concurrently came to the conclusion that all ingredients of the offence punishable under Section 138 of the N.I. Act have been established and that the petitioner has not succeeded in establishing the defence urged by him. Accordingly they proceeded to pass the impugned concurrent judgments.
5. Called upon to explain the nature of challenge which the petitioner Crl.R.P.No. 2715 of 2006 3 wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner reiterates the contentions that were raised before the courts below. The petitioner is a bank employee. The convenient and specious plea which he advanced was that he had signed several cheques and handed them over to the complainant herein as blank signed cheques. This cannot be swallowed by a prudent mind unless supported by compelling circumstances. Except the convenient assertion made by the petitioner there are no satisfactory inputs on which the plea can be accepted . The plea of discharge has not been specifically established also. The burden is undoubtedly on the accused also in a prosecution under Section 138 of the N.I. Act to establish his case of discharge. The evidence adduced falls significantly of short of the requisite mark. It is also contended that the account is closed and that the cheques are not dishonoured on the grounds mentioned under Section 138. This contention is no longer available to the petitioner in the light of the decision of the Division Bench in Vathsan v. Japahari (2003 (3) KLT 972). In these circumstances I find absolutely no merit in the challenge raised against the impugned concurrent verdict of guilty and conviction. No other Crl.R.P.No. 2715 of 2006 4 contentions are raised on merits.
6. Finally the learned counsel prays that leniency may be shown on 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 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. I note that both the courts have not chosen to duly compensate the victim/complainant. Leniency can be shown on the question of sentence, but subject to the compulsion of ensuring adequate and just compensation to the victim of the crime. The victim in this case has been compelled to wait from March 1998 and to fight two rounds of legal battle for the redressal of his grievances. 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 to the respondent.
8. In the result:
(a) This revision petition is allowed in part. Crl.R.P.No. 2715 of 2006 5
(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/- (Rupees one lakh eighty thousand only) 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.
9. 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 Crl.R.P.No. 2715 of 2006 6 tm
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