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JOSEPH MATHEW versus STATE OF KERALA

High Court of Kerala

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JOSEPH MATHEW v. STATE OF KERALA - Crl Rev Pet No. 3197 of 2006 [2006] RD-KL 691 (11 September 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 3197 of 2006()

1. JOSEPH MATHEW, AGED 35, S/O.MATHEW,
... Petitioner

Vs

1. STATE OF KERALA, REP. BY
... Respondent

2. V.M.JOSEPH, S/O.MAMMEN,

For Petitioner :SRI.MAURICE VINCENT

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :11/09/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 3197 of 2006
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Dated this the 11th day of September, 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. 60,000/-. It bears the date 18.4.2002. The petitioner now faces a sentence of S.I. for a period of six months. There is also a direction to pay an amount of Rs. 62,000/- as compensation and in default to undergo S.I. for a further period of three months.

3. The signature in the cheque is admitted. The notice of demand, though duly received and acknowledged, did not admittedly evoke any response. The complainant examined himself as PW1 and proved Exts.P1 to P4. The accused did not adduce any defence evidence. Except to broadly and vaguely contend that the cheque was not issued for the due discharge of any legally Crl.R.P.No. 3197 of 2006 2 enforcible debt/liability, no specific or definite defence was even taken up.

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 the 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 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, I am satisfied that the prayer for leniency can be accepted. 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). I am not satisfied that there are any compelling reasons which Crl.R.P.No. 3197 of 2006 3 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 it will have to be zealously ensured that the complainant, who has been compelled to wait for about four years and to fight two rounds of unnecessary legal battle for the redressal of his genuine grievances is adequately and justly compensated. The challenge can succeed only to the above extent.

6. In the nature of the relief which I propose to grant, I am satisfied that 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.

(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.66,000/- Crl.R.P.No. 3197 of 2006 4 (Rupees sixty six thousand only) as compensation and in default to undergo S.I. for a period of two months. If realised the entire amount shall be released to the complainant.

8. The petitioner shall appear before the learned Magistrate on or before 16.11.2006 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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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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