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2006 DIGILAW 677 (KER)

K. K. Dharmajan v. K. Ramachandra Panicker

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 Negotiable Instruments Act. 2. The cheque is for an amount of Rs. 50,000/-. It bears the date 16.01.2001. The petitioner now faces a sentence of simple imprisonment for a period of 6 months. There is a further direction to pay the actual cheque amount of Rs. 58,000/- as compensation and in default to undergo simple imprisonment for a period of three months. 3. The signature in the cheque is disputed. Notice of demand though duly received and acknowledged did not evoke any response. The complainant examined himself as PW1 and proved Exts. P1 to P13. The accused did not adduce any oral or documentary evidence. 4. The accused who did not respond to the notice of demand took up a defence in the course of the trial that the cheque was handed over as a blank unsigned cheque to the complainant to whom he was employed. 5. The courts below 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. That the improbable, artificial and unworthy defence advanced by the accused that cheque being handed over as an unsigned cheque as security cannot be accepted. Accordingly, they proceeded to pass the impugned concurrent judgments. 6. 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 reiterates the contention that the cheque was handed over as a blank unsigned cheque as security when the petitioner joined the employment of the complainant as a paid employee. Less said about this artificial defence the better. The courts below, according to me, committed no error in relying on the evidence of PW1 about the circumstances under which the complainant came into the possession of Ext.P1 cheque admittedly written on a cheque leaf issued to the petitioner by his bank to operate his account. The eloquent silence of the petitioner on receipt of the notice of demand ........ or to accept the oral evidence about the execution and handing over of the cheque. Once the execution and handing over of the cheque are proved, the presumption under Section 139 of the N.I.Act comes into operation. The eloquent silence of the petitioner on receipt of the notice of demand ........ or to accept the oral evidence about the execution and handing over of the cheque. Once the execution and handing over of the cheque are proved, the presumption under Section 139 of the N.I.Act comes into operation. No attempt whatsoever was made to discharge the said burden under Section 139 of the N.I.Act. The challenge raised on merits must and does in these circumstances fail. 7. The learned counsel for the petitioner prays that leniency may be shown on the question of sentence. I find merit in that contention. 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 Anil Kumar v. Shammy (2002 (3) KLT 852). I do not find any compelling reasons which can persuade this court 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 just, fair and adequate compensation to the victim who has been compelled to fight two rounds of unnecessary legal battle and to wait from 2001 for the redressal of the legitimate grievances. 8. In the nature of the relief that I propose to grant, it is not necessary for me to wait for issue and return of notice to the 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, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3) of the Cr.P.C to pay an amount of Rs.65,000/- as compensation and in default to undergo simple imprisonment for a period of three months. If realised, the entire amount shall be released to the petitioner. The petitioner shall have time till 16.12.2006 to appear before the learned Magistrate and serve the modified sentence. If he does not appear before the learned Magistrate on or before 16.12.2006, the learned Magistrate shall thereafter proceed to execute the modified sentence hereby imposed.