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2006 DIGILAW 674 (KER)

T. Manikandan v. State of Kerala

2006-10-10

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 cheque is for an amount of Rs. 10,000/-. It bears the date 28.02.2001. The petitioner now faces a simple imprisonment for a period of one month and to pay an amount of Rs. 10,500/- as compensation. No default sentence is imposed. 3. The signature in the cheque is admitted. 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 P4. The accused did not adduce any oral evidence. He proved Exts. D1 series. The accused attempted to raise a contention in the course of the trial that the cheque was not issued for the due discharge of any legal enforcible debt/liability. It was handed over only as security to another person and not to the complainant, it was alleged. 4. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the elements 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 the 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. The learned counsel for the petitioner only prays that leniency may be shown on the question of sentence and some further time may be granted to the petitioner to pay the amount and to 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 total absence of challenge on any specific grounds against the verdict of guilty and conviction, t is not necessary for me to advert to facts in any greater detail in this order. Suffice it to say that the verdict of guilty and conviction are found to be absolutely justified and unexceptionable. 7. Coming to the question of sentence I find merit in the plea for leniency. Suffice it to say that the verdict of guilty and conviction are found to be absolutely justified and unexceptionable. 7. Coming to the question of sentence I find merit in the plea 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 reported in Anil Kumar v. Shammy (2002 (3) KLT 82). I find no compelling reasons which can persuade me to insist on imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown to the petitioner but subject only to the compulsion of ensuring adequate and fair compensation to the victim/complainant. A toothless direction under section 357 (3) C.R.P.C. is unlikely to ensure justice to the complainant. A default sentence must also be imposed as permitted in Hari Sing v. Sukhbir Sing (AIR 1988 SC 2127). 8. In the nature of the relief that I propose to grant I am satisfied that it is not necessary to wait for issue and return of notice to the respondent/complainant. 9. 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 supersession of the sentence imposed on the petitioner by the courts below, the petitioner is sentenced to undergo imprisonment till rising of court. He is further directed to pay an amount of Rs. 15,000/- (Rupees Fifteen Thousand only) as compensation and in default to undergo a Simple imprisonment for a period of three weeks. If realised the entire amount shall be released to the complainant as compensation. The petitioner shall have time till 30.11.2006 to appear before the learned Magistrate and serve the modified sentence hereby imposed. The sentence shall not be executed till that date. If the petitioner does not appear before the learned Magistrate on or before that date, the learned Magistrate shall thereafter proceed to execute the modified sentence hereby imposed.