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KUTTAPPAN v. P.M. GEORGE - Crl Rev Pet No. 1767 of 2003(A)  RD-KL 85 (4 July 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 1767 of 2003(A)
1. KUTTAPPAN, S/O. KOCHUKUNJU,
1. P.M.GEORGE, S/O. MATHEN,
2. STATE OF KERALA,
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.SHAJI P.CHALY
The Hon'ble MR. Justice R.BASANT
O R D E R
R. BASANT, J.
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Crl.R.P.No. 1767 of 2003
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Dated this the 4th day of July, 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 appellate court had modified the sentence. The petitioner now faces S.I. for one month and a direction to pay an amount of Rs.50,000/- as compensation. No default sentence was prescribed.
3. The cheque is for an amount of Rs. 43,800/- It is dated 30.6.1998. The signature in the cheque is admitted. Handing over of the cheque is also admitted. The notice of demand, though duly received and acknowledged, did not evoke any response. Before the learned Magistrate the complainant examined himself as PW1 and proved Exts.P1 to P5. No defence evidence whatsoever was adduced. In the course of trial a contention was raised that the Crl.R.P.No. 1767 of 2003 2 cheque was issued not for the discharge of any legally enforcible debt/liability, but as security for a transaction relating to cutting and removing of rubber trees after slaughter tapping. It is the case of the accused that the said transaction did not come through, but the cheque which was handed over as security remained with the complainant, who is now attempting to misutilise the same to stake a false claim.
4. The courts below concurrently came to the conclusion that all ingredients of the offence punishable under Section 138 of the N.I. Act have been established. The contention that the cheque was given not for the discharge of any legally enforcible debt/liability was not accepted by the courts below. Accordingly they proceeded to pass the impugned concurrent judgments.
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 strain to challenge the verdict of guilty and conviction. I am satisfied that the verdict of guilty and conviction are absolutely justified and unexceptionable. In the absence of challenge on any specific ground before me, I am satisfied that it is not Crl.R.P.No. 1767 of 2003 3 necessary to advert to facts in any greater detail.
6. Coming to the question of sentence, counsel prays that leniency may be shown on the question of sentence. 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 satisfied that subject to the requirement of compensating the complainant adequately, the sentence can be modified and reduced. The cheque was issued in June, 1998. The complainant, who has been compelled to wait from 1998 and to fight two rounds of legal battle for the redressal of his grievance, will have to be adequately compensated. The challenge succeeds to the above extent.
7. I find that the learned Sessions Judge has not imposed any default sentence. A toothless direction for compensation will not serve justice when this Court leniently reduces the substantive sentence of imprisonment. The Supreme Court has taken the view that a direction for payment of compensation can be enforced by a default sentence in the decision in Hari Kishan & State of Haryana v. Sukhbir Singh (AIR 1988 SC 2127). A default sentence has got to be imposed. Crl.R.P.No. 1767 of 2003 4
8. 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.52,000/- 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.
9. The petitioner shall appear before the learned Magistrate on or before 7.8.2006 to serve the modified sentence hereby imposed. 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) Crl.R.P.No. 1767 of 2003 5 Judge tm
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