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P.K. JOSEPH v. LEELAMMA ALEX - Crl Rev Pet No. 3232 of 2006  RD-KL 743 (13 September 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 3232 of 2006()
1. LEELAMMA ALEX
For Petitioner :SRI.DENU JOSEPH
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. 3232 of 2006
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Dated this the 13th day of September, 2006
O R D E RThis revision petition is filed by the first accused against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act. He faced indictment along with the co-accused, a co-signatory to the cheque.
2. The cheque is for an amount of Rs. 56,000/- It was issued as early as in 2001. Petitioner is the Chairman and the co- accused is the Managing Director of a Company. The petitioner now faces a sentence of S.I. for one month and to pay an amount of Rs.30,000/- as compensation and in default to undergo S.I. for a further period of 15 days. The co-accused has not preferred any revision so far, it is submitted.
3. Before the court below PW1 was examined and Exts.P1 to P9 were marked on the side of the complainant. DWs. 1 and 2 were examined and no documents were marked on the side of the Crl.R.P.No. 3232 of 2006 2 accused.
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. The courts came to the conclusion that the company had committed the offence and the petitioner and the co-accused, signatories to the cheque, are liable under Section 141 of the N.I. Act. Accordingly they 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. He 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. Having gone through the concurrent judgments, I am satisfied that the verdict of guilty and conviction are absolutely justified and Crl.R.P.No. 3232 of 2006 3 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 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 of ensuring adequate and just compensation to the complainant, who has been compelled to wait from 2002 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.
(b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I. Act are upheld. Crl.R.P.No. 3232 of 2006 4 ) 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.35,000/- (Rupees thirty five thousand only) as compensation and in default to undergo S.I. for a period of one month. If realised the entire amount shall be released to the complainant.
8. The petitioner shall appear before the learned Magistrate on or before 15.11.2006 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. Needless to say, the amount, if any, deposited before the courts below in the course of the proceedings shall be given due credit to and the same shall be released to the complainant forthwith. (R. BASANT) Crl.R.P.No. 3232 of 2006 5 Judge tm
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