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SURENDRAN v. V.K. GOPI - Crl Rev Pet No. 3016 of 2006  RD-KL 663 (31 August 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 3016 of 2006()
1. SURENDRAN, AGED 36 YEARS,
1. V.K.GOPI, PARTNER, REPRESENTED ON
2. STATE OF KERALA,
For Petitioner :SRI.P.K.SAJEEV
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. 3016 of 2006
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Dated this the 31st 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. 10,875/- It bears the date 25.10.2000. The signature in the cheque is admitted. Transaction between the parties is also admitted. The notice of demand, though received and acknowledged, did not evoke any response. The complainant examined PW1 and proved Exts.P1 to P16. The accused did not adduce any defence evidence. The short contention raised in the course of the trial was that the cheque was not issued for the due discharge of any legally enforcible debt/liability, but only as security.
3. The courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in Crl.R.P.No. 3016 of 2006 2 establishing all ingredients of the offence punishable under Section 138 of the N.I. Act. Accordingly they proceeded to pass the impugned concurrent judgments.
4. Arguments have been heard. 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 prays that leniency may be shown on the question of sentence. 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 facts in any greater detail in this order. I am satisfied that the verdict of guilty and conviction are absolutely justified and unexceptionable.
5. Coming to the question of sentence, the petitioner now faces a sentence of S.I. for a period of six months and to pay a fine of Rs.5,000/- No compensation has been directed to be paid. There is no contention that any amount has been paid or that any civil case is pending for the recovery of the amount. I find merit in the prayer for leniency. I have already adverted to the principles governing imposition of sentence in a prosecution Crl.R.P.No. 3016 of 2006 3 under Section 138 of the N.I. Act in the decision in Anilkumar v. Shammy (2002 (3) KLT 852). I am not satisfied that there are any compelling reasons which would justify or warrant 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 that the complainant, who has been compelled to wait from 2000 and to fight two rounds of legal battle for the redressal of his grievances is adequately compensated. The challenge can succeed only to the above extent.
6. 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.17,000/- (Rupees seventeen thousand only) as compensation and in default to Crl.R.P.No. 3016 of 2006 4 undergo S.I. for a period of one month. If realised the entire amount shall be released to the complainant.
7. 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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