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DINESAN SON OF PADMANABHAN versus V.C. JAMES

High Court of Kerala

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DINESAN SON OF PADMANABHAN v. V.C. JAMES - Crl Rev Pet No. 2908 of 2006 [2006] RD-KL 556 (23 August 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2908 of 2006()

1. DINESAN SON OF PADMANABHAN
... Petitioner

Vs

1. V.C.JAMES
... Respondent

For Petitioner :SRI.T.R.HARIKUMAR

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :23/08/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 2908 of 2006
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Dated this the 23rd 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. 2,00,000/-. It bears the date 10.9.1999. The petitioner now faces a sentence of S.I. for a period of three months. There is also a direction to pay an amount of Rs. 2,05,000/- as compensation and in default to undergo S.I. for a further period of three months.

3. The signature in the cheque is admitted. The notice of demand, though duly received and acknowledged, did not admittedly evoke any response. The complainant examined himself as PW1 and a witness to the transaction as PW2. Exts.P1 to P8 were marked. The accused, in the course of the trial, attempted to advance a contention that the real transaction was for a much lesser amount Crl.R.P.No. 2908 of 2006 2 of Rs.40,000/- and that the cheque was not issued for the due discharge of any legally enforcible debt/liability, but was issued only as a blank signed cheque and as security for the said transaction of Rs.40,000/- Significantly no evidence whatsoever was adduced by the accused.

4. 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.

5. 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 reiterates the contention which was raised before the courts below. No other contentions are raised on merits. I find absolutely no merit in this contention. The evidence of PWs. 1 and 2 read along with the admitted signature appearing on the cheque and the improbable conduct of the petitioner remaining silent/inactive on receipt of the notice of demand threatening criminal prosecution are eminently satisfactory and sufficient to prove execution and handing over of the cheque. Once that is proved, the presumption under Section 139 of the N.I. Crl.R.P.No. 2908 of 2006 3 Act comes into play and absolutely no worthwhile attempt has been made to discharge that burden. The challenge raised on merits must, in these circumstances, fail.

6. The learned counsel for the petitioner 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). In the facts and circumstances of the case, I do not find any compelling reasons which can persuade this court to insist on imposition of any deterrent substantive sentence of imprisonment on the petitioner. Leniency can be shown on the question of sentence, but subject to the compulsion of ensuring adequate and just compensation to the victim/complainant, who has been compelled to wait from 1999 and to fight two rounds of legal battle for the redressal of his genuine 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. Crl.R.P.No. 2908 of 2006 4

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, 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.2,25,000/- (Rupees two lakhs twenty five 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.

9. The petitioner shall appear before the learned Magistrate on or before 31.10.2006 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. Crl.R.P.No. 2908 of 2006 5 (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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