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SATHYAKUMAR v. S.N. PRABHAKARAN - Crl Rev Pet No. 2892 of 2006  RD-KL 564 (23 August 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 2892 of 2006()
1. SATHYAKUMAR, S/O. CHAKRAPANI,
1. S.N.PRABHAKARAN, S/O. NARAYANAN,
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.JACOB SEBASTIAN
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. 2892 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. 1,64,800/-. It bears the date 5.7.2002. The petitioner now faces a sentence of S.I. for a period of one year. He is also directed to pay an amount of Rs. 1.65 lakhs as compensation and in default to undergo S.I. for a further period of three months.
3. The signature in the cheque is not seriously disputed. In the course of cross examination of PW1 and when the accused was examined under Section 313 Cr.P.C. the contention raised is that the cheque was stolen by an employee of the petitioner and the complainant in collusion with such employee is misutilising the cheque. The notice of demand, though duly sent by pre-paid post in Crl.R.P.No. 2892 of 2006 2 the correct address, was returned unclaimed. The complainant examined himself as PW1 and proved Exts.P1 to P5. The accused did not adduce any evidence - oral or documentary.
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 the courts below 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. Having gone through the impugned concurrent judgments, 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. In the absence of challenge on any specific ground against the verdict of guilty and conviction, I am satisfied that it is not necessary for me to advert to the Crl.R.P.No. 2892 of 2006 3 facts in any greater detail in this order.
5. 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 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 for a period of 4 years and to fight two rounds of legal battle for the redressal of his genuine grievances. 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. Crl.R.P.No. 2892 of 2006 4
(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.2,00,000/- (Rupees two lakhs 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 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 Crl.R.P.No. 2892 of 2006 5 tm
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