Chandy Thaickan vs Benhur Traders and Investments Pvt. Ltd. and State of Kerala

R. Basant, J.—This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution u/s 138 of the N.I. Act.

The cheque is for an amount of Rs. 52,525/- It bears the date 21.8.1997. The petitioner now faces a sentence of S.I. for a period of one month. There is also a direction to pay the actual cheque amount as compensation and in default to undergo S.I. for a further period of three months.

The signature in the cheque is admitted. The notice of demand, though duly despatched in the correct address by pre-paid post, was returned unclaimed. The complainant examined PW 1 and proved Exts. P1 to P5. The accused did not adduce any evidence. Exts. D1 to D3 were marked. The attempt by marking of Exts. D1 to D3, it is submitted, was only to show that the complainant had made a mis-statement in another prosecution between the same parties that there was no other cheque, whereas the complainant claimed that this cheque i.e. Ext. P1 was also issued by the accused to the complainant.

The courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in establishing all elements of the offence punishable u/s 138 of the N.I. Act. Accordingly they proceeded to pass the impugned concurrent judgments. The courts below held that though Exts. D1 to D3 may indicate an incorrect statement, nothing turns upon such incorrect statement as the present prosecution was initiated admittedly even prior to Exts. D1 to D3.

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 prays that leniency may be shown on the question of sentence.

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 unexceptionable.

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 u/s 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 1997 and to fight two rounds of legal battle for the redressal of his genuine grievances. The challenge can succeed only to the above extent.

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.

In the result:

(a) This revision petition is allowed in part.

(b) The impugned verdict of guilty and conviction of the petitioner u/s 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 u/s 357(3) Cr.P.C. to pay an amount of Rs. 65,000/- (Rupees sixty five thousand only) as compensation and in default to undergo S.I. for a period of three months. If realised the entire amount shall be released to the complainant.

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.