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2006 DIGILAW 375 (KER)

Prakasan v. Emmannuel Sarees, Jai Hind Building

2006-07-04

R.BASANT

body2006
Judgment :- 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 petitioner now faces S.I. for one month. There is also a direction to pay the cheque amount less the amount of Rs.1,000/- admittedly paid, as compensation under Section 357(3) Cr.P.C., coupled with a default sentence of S.I. for three months. 3. The cheque is for an amount of Rs. 35,259/- The signature in the cheque is admitted. Handing over of the cheque is also admitted. The notice of demand, duly received and acknowledged, succeeded in evoking only Ext.P7 letter, under which an amount of Rs.1,000/- was paid towards the liability. Before the learned Magistrate the complainant examined PW1 and proved Exts.P1 to P9. In the course of trial a contention was raised Crl.R.P.No. 2321 of 2002 that the cheque was issued not for the discharge of any legally enforceable debt/liability. The accused examined himself as DW1. No documentary evidence was adduced. 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. Accordingly they proceeded to ass 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 challenge the verdict of guilty and conviction. The counsel prays that leniency may be shown on the question of sentence. 5. I have gone through the impugned judgments. 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 necessary to advert to facts in any greater detail. 6. Coming to the question of sentence, I have already adverted to the principles governing imposition of sentence in a prosecution under Crl.R.P.No. 2321 of 2006 3 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. 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 it has to be zealously ensured that the complainant, who has been compelled to wait from 2001 and to fight two rounds of legal battle for the redressal of his grievance is adequately compensated. The challenge succeeds to the above extent. 7. Considering the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of notice on the respondent. 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.) (c) But the sentence imposed is modified and reduced. In super session 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.42,500/- as Crl.R.P.No. 2321 of 2006 4 compensation and in default to undergo S.I. for a period of three months. If realized 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.