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O. SIVANANDAN versus GEORGE SAMUEL

High Court of Kerala

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O. SIVANANDAN v. GEORGE SAMUEL - Crl Rev Pet No. 2229 of 2004(C) [2006] RD-KL 920 (28 September 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2229 of 2004(C)

1. O. SIVANANDAN, PROPRIETOR,
... Petitioner

Vs

1. GEORGE SAMUEL, MANAGING PARTNER
... Respondent

2. STATE OF KERALA, REP. BY PUBLIC

For Petitioner :SRI.T.G.RAJENDRAN

For Respondent :SRI.GEORGE CHERIAN (THIRUVALLA)

The Hon'ble MR. Justice R.BASANT

Dated :28/09/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 2229 of 2004
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Dated this the 28th 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. 1,01,341.14. It bears the date 18.6.1994. The signature in the cheque is admitted. The notice of demand succeeded only in evoking a reply. The said reply has not been marked. The notice did not succeed in securing payment. The complainant in these circumstances came to court with a complaint under Section 138 of the N.I. Act after observing the statutory time table scrupulously. The complainant examined himself as PW1 and managers of the drawee and collecting banks as PWs. 2 and 3. Exts.P1 to P9were marked. The accused did not adduce any evidence - oral or documentary.

4. The courts below, in these circumstances, concurrently Crl.R.P.No. 2229 of 2004 2 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. Counsel 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 does not strain to assail the verdict of guilty and conviction on merits. He only submits that the compensation amount of Rs.2 lakhs directed to be paid by the appellate court is excessive and that the default sentence imposed violates the mandate of Section 30 Cr.P.C.

6. I find merit in the challenge raised against the quantum of compensation directed to be paid. An amount of Rs.2 lakhs has been directed to be paid, though the cheque amount, as stated earlier is Rs.1,01,341.14. Leniency can be shown on the question of quantum of compensation and the default sentence can be reduced also. The plight of the complainant, who has been compelled to wait from 1994 - a period exceeding 12 years - and to fight three rounds of legal battle for the Crl.R.P.No. 2229 of 2004 3 redressal of his genuine grievances must be alertly borne in mind.

8. In the result:

(a) This revision petition is allowed in part.

(b) The impugned appellate judgment is upheld in all other respects. But the compensation amount is modified and reduced to Rs.1,50,000/- (Rupees one lakh fifty thousand only) and the default sentence is reduced to S.I. for a period of three months. If realised the entire amount shall be released to the complainant.

9. 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


Copyright

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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