K. Kumaran vs V. Hussain Haji

R. Basant, J.—This revision petition is directed against the verdict of guilty, conviction and sentence in a prosecution u/s 138 of the N.I. Act. The petitioner faces the sentence of rigorous imprisonment for a period of three months. There is no direction to pay compensation. No sentence of fine has also been imposed.

The cheque is for an amount of Rs. 3,140/-. It bears the date 15/12/95. The complainant examined P.Ws.1 and 2 and proved Exts.P1 to P5. The accused did not adduce any defence evidence. The learned Magistrate came to the conclusion that the offence u/s 138 of the N.I. Act has been proved. Accordingly, the learned Magistrate proceeded to pass the impugned verdict of guilty and conviction. An appeal was preferred along with an application for condonation of delay. The application for condonation of delay was dismissed. Accordingly, the appeal was rejected as barred by limitation.

The petitioner claims to be aggrieved by the impugned judgments. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned order, the learned Counsel for the petitioner wants to challenge the sentence only now. The learned Sessions Judge was not justified in rejecting the appeal on the ground of delay. The petitioner has been making all efforts to settle the dispute; but the complainant is not traceable and that is why the petitioner is not able to report settlement, submits counsel.

I have considered the judgment of the trial court. I find absolutely no reason to interfere with the verdict of guilty and conviction. In the absence of challenge on any specific ground, it is unnecessary to advert to the facts in any greater detail in this order.

Coming to the appellate judgment, I find merit in the contention of the learned Counsel for the petitioner that notwithstanding the delay in filing the appeal, in the circumstances of the case, considering the quantum of money involved, at least, a lenient view must have been taken and the petitioner must have been enabled to avoid such a deterrent substantive sentence.

I have considered the question of sentence. I find merit in the submission that the imposition of a deterrent substantive sentence of rigorous imprisonment for a period of three months is excessive. I am satisfied that a lenient view can be taken. 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 reported in Anilkumar v. Shammi 2002(3) KLT 852. I am satisfied that there are no compelling reasons which can persuade this Court to insist on imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown on the question of sentence, but subject only to the compulsion of ensuring adequate and just compensation for the victim/complainant, who has been compelled to fight three rounds of legal battle by now and to wait from 1995 for the redressal of his grievances. He deserves to be compensated satisfactorily. The challenge can succeed only to the above extent.

In the result:

(a) This Crl.R.P 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 supersession of the sentence imposed on the petitioner by the court below, he is sentenced to undergo imprisonment till rising of court. He is further directed to pay an amount of Rs. 6,200/- as compensation u/s 357(3) Cr.P.C and in default to undergo S.I for a period of one month. If the amount is not paid directly to the complainant and is deposited or recovered through court, the same shall be released to the complainant entirely.

The petitioner shall have time till 29/6/09 to make the payment and avoid the default sentence. The modified sentence hereby imposed shall not be executed till that date. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before that date for execution of the modified sentence hereby imposed.