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K.P. SADANANTHAN v. N. USSANKUTTY - Crl Rev Pet No. 2897 of 2006  RD-KL 558 (23 August 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 2897 of 2006()
1. K.P.SADANANTHAN, AGED 42 YEARS,
1. N.USSANKUTTY, AGED 50 YEARS,
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.V.JOHN SEBASTIAN RALPH
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. 2897 of 2006
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Dated this the 23rd 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. 30,000/-. It bears the date 1.9.2000. The petitioner now faces a sentence of S.I. for two days and to pay the actual cheque amount of Rs. 30,000/- as compensation and in default to undergo S.I. for a further period of two months.
3. The signature in the cheque is not disputed. That the cheque was handed over by the petitioner to another is admitted. The notice of demand, though duly received and acknowledged, did not admittedly evoke any response. The accused, in the course of the trial, attempted to advance a contention that the cheque was not issued for the due discharge of any legally enforcible Crl.R.P.No. 2897 of 2006 2 debt/liability, but was issued to another person as security. It was issued as a blank signed cheque and the same is being misutilised by the complainant in collusion with the recipient of the cheque to stake an untenable claim. DW1 was examined to say that he has seen that the cheque was handed over to the other person.
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. I find absolutely no merit in this contention. The evidence of PW1 is found to be eminently acceptable. His evidence is supported by his ability to produce Ext.P1 cheque admittedly written on a cheque leaf issued by the petitioner's bank to the petitioner to operate his account. His evidence is further corroborated by the improbable conduct of the petitioner remaining silent/inactive on receipt of the notice of demand. Crl.R.P.No. 2897 of 2006 3 In these circumstances the courts below committed no error in coming to the conclusion that the evidence establishes execution and handing over of the cheque by the petitioner to the complainant. Once that is proved, the presumption under Section 139 of the N.I. Act arises. That burden has not been discharged by examination of DW1. The challenge raised on merits must, in these circumstances, fail.
6. The learned counsel for the petitioner then prays that leniency may be shown on the question of sentence. The sentence of imprisonment for two days may be modified, it is prayed. The petitioner is certainly entitled to leniency, provided he makes amends by adequately compensating the complainant, who has been compelled to fight two rounds of legal battle and to wait from 1.9.2000 has now been granted only the cheque amount as compensation. I am satisfied that he is, at any rate, entitled to some further amount as compensation for the expenses incurred for the prosecution of this two tier criminal litigation. 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. 2897 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.34,000/- (Rupees thirty four thousand only) as compensation and in default to undergo S.I. for a period of 45 days. 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. Needless to say, amounts, if any, deposited in the course of the proceedings before the courts below shall be given due credit to and the same shall be released to the Crl.R.P.No. 2897 of 2006 5 complainant forthwith. (R. BASANT) Judge tm
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