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C.K. HASSAN HAJI versus V.P. PRABHAKARAN

High Court of Kerala

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C.K. HASSAN HAJI v. V.P. PRABHAKARAN - Crl Rev Pet No. 2987 of 2006(D) [2006] RD-KL 604 (29 August 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2987 of 2006(D)

1. C.K.HASSAN HAJI
... Petitioner

Vs

1. V.P.PRABHAKARAN
... Respondent

For Petitioner :SRI.SUNNY MATHEW

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :29/08/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 2987 of 2006
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Dated this the 29th 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. 42,000/- It bears the date 10.5.1993. 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.42,000/- as compensation and in default to undergo S.I. for a further period of five months.

3. The signature in the cheque is admitted. The notice of demand was returned with the endorsement that it was refused. The accused did not deny the signature, but in the course of the trial took up a contention that the cheque was not issued for the due discharge of any legally enforcible debt/liability. The complainant examined himself as PW1, the Manager of the drawee bank as PW2 and the Crl.R.P.No. 2987 of 2006 2 postman, who allegedly attempted to effect service and made the endorsement of refusal, as PW3. Exts.P1 to P6 were marked. The accused examined a police constable, who effected service of the summons in another case on the petitioner under Ext.D2 as DW1. He also proved Ext.D1. Ext.D1 is a document, under which a property was sold to the father-in-law of the petitioner, which showed a different address than the address shown in Ext.P4 notice. The short attempt of the petitioner was to show that his father-in-law was not residing at the address shown in Ext.P4.

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 judgment.

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 does not make any concession, but has trained all his guns only on the finding of the court below that there has been proper and sufficient service of notice of demand on the petitioner. There is of course the further contention that the sentence imposed is Crl.R.P.No. 2987 of 2006 3 excessive. These are the only contentions raised before me.

6. Coming to the question of service of notice, it has come out clearly in evidence that the notice was issued under pre-paid registered post to an address which is available in the relevant books of account maintained by the bank in respect of the account in which Ext.P1 cheque is drawn. That goes a long way to assure the court of the correctness of the address shown and the due compliance of the mandate of the section to give proper notice of demand. PW3, postman, had made the requisite endorsement on Ext.P4 (returned notice) and that again shows that the notice was duly attempted to be served on the petitioner, who refused to accept the same. In these circumstances the feeble material made available by way of Exts.D1 and D2 and the fact that the petitioner was served with summons at the address of his parental home are not, according to me, sufficient to entitle the petitioner to contend that there was no proper notice. No other contentions are raised. I am satisfied that the verdict of guilty and conviction are absolutely justified.

7. Coming to the question of sentence, the learned counsel for the Crl.R.P.No. 2987 of 2006 4 petitioner 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 1993 and to fight two rounds of legal battle for the redressal of her genuine grievances. Substantive sentence of imprisonment can be reduced. Default sentence can also be reduced to conform to the mandate of Section 30 Cr.P.C. The challenge can succeed only to the above extent.

8. 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.

9. In the result:

(a) This revision petition is allowed in part. Crl.R.P.No. 2987 of 2006 5

(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 three months. If realised the entire amount shall be released to the complainant.

10. 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, set off, if any, admissible shall be granted to the petitioner. (R. BASANT) Crl.R.P.No. 2987 of 2006 6 Judge tm

R. BASANT, J.


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Crl.R.P.No. 2987 of 2006
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Dated this the 26th day of June, 2006

O R D E R

Crl.R.P.No. 2987 of 2006 7 This revision petition is directed against the concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act.

2. When this revision petition came up for hearing, it is submitted at the Bar by counsel for the rival contestants that the matter has been settled and the offence has been compounded by the complainant. A joint compromise petition duly signed by the rival contestants and counter signed by their respective counsel is also filed. The learned counsel for the respondent/complainant vouches that the signature appearing in the application for composition is that of the complainant.

3. The offence under Section 138 of the N.I. Act is now compoundable after the amendment to the N.I. Act. I am satisfied, from the submissions made at the Bar and the joint statement filed by them, that the parties have settled their dispute amicably. I find no reason not to accept the composition.

4. In the result: Crl.R.P.No. 2987 of 2006 8

(a) Crl.M.A.No. 6115 of 2006 is allowed and the composition is accepted.

(b) The acceptance of the composition shall have the effect of acquittal of the accused of the offence punishable under Section 138 of the N.I. Act as stipulated under Section 320(8) Cr.P.C. ) Consequently, this revision petition is allowed. The impugned judgments are set aside. The petitioner, if in custody, shall be released forthwith. (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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