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N.P. CHITHRABHANU versus G. ANIL KUMAR

High Court of Kerala

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N.P. CHITHRABHANU v. G. ANIL KUMAR - Crl Rev Pet No. 2739 of 2006 [2006] RD-KL 443 (9 August 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2739 of 2006()

1. N.P.CHITHRABHANU
... Petitioner

Vs

1. G.ANIL KUMAR
... Respondent

For Petitioner :SRI.K.REGHU KOTTAPPURAM

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :09/08/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 2739 of 2006
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Dated this the 9th day of August, 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. 40,000/- It bears the date 15.10.1998. The signature in the cheque is admitted. The notice of demand, though despatched by registered post in the correct address, was not served and was returned unclaimed. The complainant examined himself as PW1. Exts.P1 to P7 were marked. The accused, in the course of trial, took up a defence that the cheque was not issued for the discharge of any legally enforcible debt/liability, but was issued to DW1 as security. It was contended that the accused does not know how the cheque reached the hands of the complainant from DW1. The accused examined DW1. But DW1 did not support the case of the accused. Crl.R.P.No. 2739 of 2006 2

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.

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. The counsel only prays that leniency may be shown on the question of sentence. I reckon that as an informed and fair stand taken by the learned counsel for 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 for a period of two weeks and to pay an amount of Rs.41,000/- as compensation and in default to undergo S.I. for a period of one month. I find merit in the prayer for leniency. 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 Crl.R.P.No. 2739 of 2006 3 (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 October, 1998 and to fight two rounds of legal battle for the redressal of his genuine grievances is adequately compensated. Subject to the requirement of accommodating the component of adequate reparation of the victim, leniency can be shown and reasonable further time can be granted to the petitioner. 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 on 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, Crl.R.P.No. 2739 of 2006 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. 47,500/- (Rupees forty seven thousand five hundred only) 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.

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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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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