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N. SURESH KUMAR versus BABU A.V.

High Court of Kerala

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N. SURESH KUMAR v. BABU A.V. - Crl Rev Pet No. 2274 of 2006 [2006] RD-KL 54 (3 July 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2274 of 2006()

1. N.SURESH KUMAR,ADVOCATE,
... Petitioner

Vs

1. BABU.A.V. S/O.VASU, ANCHUTHAYYIL HOUSE,
... Respondent

2. STATE OF KERALA, REPRESENTED BY THE

For Petitioner :SRI.GEORGE MATHEW

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :03/07/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 2274 of 2006
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Dated this the 3rd 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. 2,20,000/- Petitioner is a member of the legal profession. The signature in the cheque is admitted. Handing over of the cheque is also admitted. The notice of demand, though duly received and acknowledged, did not evoke any response. The complainant examined himself as PW1 and proved Exts.P1 to P7. In the course of trial, an attempt was made to advance a contention that it was a blank signed cheque issued by the petitioner as security to guarantee a transaction between the complainant and another.

3. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all Crl.R.P.No. 2274 of 2006 2 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 only prays that leniency may be shown on the question of sentence. Of course, he points out that an application to recall a witness filed under Section 311 Cr.P.C. was dismissed by the learned Magistrate. I find that the said course adopted by the learned Magistrate is justified and unexceptionable. In the absence of even a reply to the notice of demand by the petitioner, a member of the legal profession, the courts below cannot be faulted for concluding that there is no merit or bonafides in the belated application filed under Section 311 Cr.P.C. No other contentions are raised. I am satisfied that the verdict of guilty and conviction are absolutely justified and do not warrant interference.

5. Coming to the question of sentence, I have already adverted to Crl.R.P.No. 2274 of 2006 3 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 ensured that justice is done to the complainant and he is adequately compensated. He has been waiting from 2003 for the redressal of his grievance and has been compelled to fight two rounds of legal battle by now. 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, Crl.R.P.No. 2274 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.2,40,000/- (Rupees two lakhs forty thousand only) as compensation and in default to undergo S.I. for a period of three months. If realised the entire amount shall be released to the complainant.

8. The petitioner shall appear before the learned Magistrate on or before 16.8.2006 to serve the modified sentence hereby imposed. 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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