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M.P. MUJEEB RAHMAN v. ASHRAF - Crl Rev Pet No. 2895 of 2006  RD-KL 560 (23 August 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 2895 of 2006()
1. M.P.MUJEEB RAHMAN, S/O. KUNHUMMED,
1. ASHRAF, S/O. ABDULLAKOYA,
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.P.SANJAY
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. 2895 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. 50,000/-. It bears the date 19.7.2004. The petitioner now faces a sentence of S.I. for a period of one month and to pay the actual cheque amount of Rs.50,000/- as compensation and in default to undergo S.I. for a further period of one month.
3. The signature in the cheque is not disputed. The notice of demand, though duly sent by pre-paid post in the correct address, it was returned unclaimed. The complainant examined himself as PW1 and proved Exts.P1 to P3(b). The accused did not adduce any evidence - oral or documentary.
4. The courts below, in these circumstances, concurrently Crl.R.P.No. 2895 of 2006 2 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 unsubstantiated contention which was raised before the courts below that the cheque was not issued for the discharge of any legally enforcible debt/liability, but was issued only as security to secure the payment due to the complainant from a friend of the petitioner. The said contention has not been substantiated at all. On the basis of the evidence available, the same cannot obviously be accepted.
6. The learned counsel for the petitioner then prays that leniency may be shown on the question of sentence. 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 (2002 (3) KLT 852). In the facts and circumstances of the case, I do not find any compelling reasons which Crl.R.P.No. 2895 of 2006 3 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 adequately compensating the victim/complainant. 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.
(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.60,000/- (Rupees sixty 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 Crl.R.P.No. 2895 of 2006 4 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. (R. BASANT) Judge tm
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