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R.BASANT
M. P. Abdul Nazar – Appellant
Versus
S. V. Dileep Kumar – Respondent
What is the applicability of Sec. 315 CrPC and the right to silence in a prosecution under Sec. 138 of the N.I. Act? What is the proper sentence in a Sec. 138 NI Act case—whether to impose a deterrent sentence or to exercise leniency and issue compensation under Sec. 357(3) CrPC? What are the ramifications and permissible judicial comments regarding the accused's failure to examine himself under Sec. 315(1) CrPC?
Key Points: - (!) Revision allowed in part; conviction upheld but sentence modified to imprisonment till rising of the court with compensation under Sec. 357(3) CrPC (!) (!) (!) - (!) Emphasis on Sec. 315(1) CrPC provisions: accused is competent to testify; failure to testify cannot be commented on contrary to Proviso (b) (!) (!) (!) - (!) Right to silence recognized; prosecution must prove case beyond reasonable doubt; accused need not testify (!) - (!) Court criticized for commenting on accused not taking the witness stand; such comments are improper under Sec. 315(1) CrPC (!) - (!) Section 139 NI Act presumption and burden on accused to rebut; reception of Exts. P8–P11 discussed in context of defense (!) (!) (!) - (!) Discussion on adequacy of compensation to complainant and ensuring justice besides leniency (!)
What are the ramifications of the right to silence – the glorious right to silence as it is often referred to, in a Criminal Prosecution under Sec. 138 of the N.I. Act? Is Sec.315 of the Criminal Procedure Code P.C applicable in such a prosecution? These questions arise for consideration incidentally in this revision petition.
2. 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.
3. The cheque is for an amount of Rs.20,000/-. Signature in the cheque is admitted. The cheque was dishonored on the ground of insufficiency of funds. Notice of demand, though duly received and acknowledged did not evoke any response. No defence evidence whatsoever was adduced before the trial court. The complainant examined himself as PW1 and proved Exts.P1 to P11. At the stage of trial, a contention was raised that the cheque was not issued voluntarily for the discharge of any legally enforceable debt/liability. Some miscreants had trespassed into the house of the accused. The father of the accused owed amounts to some of those miscreants in some transaction. They forcibly compelled the accused to
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