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P.S. ASHOK KUMAR versus P.B. SAMUEL & ANR

High Court of Kerala

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P.S. ASHOK KUMAR v. P.B. SAMUEL & ANR - Crl Rev Pet No. 3507 of 2006 [2006] RD-KL 998 (6 October 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 3507 of 2006()

1. P.S.ASHOK KUMAR
... Petitioner

Vs

1. P.B.SAMUEL AND ANOTHER
... Respondent

For Petitioner :SRI.C.K.SAJEEV

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :06/10/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 3507 of 2006
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Dated this the 6th day of October, 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. 13,000/-. It bears the date 20.3.2002. The petitioner now faces a sentence of S.I. for a period of 15 days. There is also a direction to pay an amount of Rs. 15,000/- as compensation and in default to undergo S.I. for a further period of one month.

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 P5. The accused did not adduce any evidence - oral or documentary. No specific defence was taken or explanation offered to explain how the cheque reached the possession Crl.R.P.No. 3507 of 2006 2 of the complainant.

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 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 and some time may be granted to the petitioner to discharge the liability and avoid the default sentence.

6. Having gone through the impugned concurrent judgments, I reckon that as an informed and fair stand taken by the learned counsel for the petitioner. 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 Crl.R.P.No. 3507 of 2006 3 unexceptionable.

7. Coming to the question of sentence, I find merit in the prayer for leniency. 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). In the facts and circumstances of the case, I do not find any compelling reasons which can persuade this court to insist on 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 victim/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.

8. 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.

9. In the result:

(a) This revision petition is allowed in part.

(b) The impugned verdict of guilty and conviction of the petitioner Crl.R.P.No. 3507 of 2006 4 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.17,500/- (Rupees seventeen thousand five hundred 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.

10. The petitioner shall appear before the learned Magistrate on or before 30.11.2006 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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