On an indictment under Section 138 of the Negotiable Instruments Act, on the allegation that a cheque for ₹1,27,926/-, issued by the revision petitioner in favour of the 1st respondent herein was bounced due to insufficiency of funds, the revision petitioner faced prosecution before the Judicial First Class Magistrate Court II, Thodupuzha, in S.T.No.118/2011.
2. The revision petitioner entered appearance and pleaded not guilty to the accusation. The complainant examined the power of attorney holder of the company, as PW1, and marked Exts.P1 to P13. One witness was also examined as PW2 on the side of the complainant. Though made contest, and denied the incriminating circumstances on examination under Section 313 Cr.P.C, the accused did not adduce any evidence in defence.
3. On an appreciation of the evidence adduced by the prosecution, the trial court found the revision petitioner guilty under Section 138 N.I Act. On conviction thereunder he was sentenced to undergo simple imprisonment for four months, and to pay of fine of ₹ 1,27,926/-.
4. Aggrieved by the conviction and sentence the revision petitioner approached the Court of Session, Thodupuzha with Crl.A No.38/2013. In appeal the learned Addl. Session Judge, Adhoc-I, Thodupuzha confirmed the conviction, but modified the sentence. Accordingly, the jail sentence was reduced to imprisonment till rising of the court, and the sentence of fine was maintained. The direction to pay the fine amount as compensation under Section 357(1)(b) Cr.P.C was also maintained in appeal. Now the accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence.
5. On hearing both sides, and on a perusal of the case records, I find no scope or ground to admit this revision to files. PWs 1 and 2 examined on the side of the complainant company has given satisfactory evidence proving the transaction in which the revision petitioner incurred a debt of ₹1,27,926/-, and also proving execution of Ext.P9 cheque in discharge of the said liability. The authority of PW1 to prosecute the complaint, and to adduce evidence is proved by Exts.P1 and P2 documents. The liability is further proved by Ext.P3 promissory note, Ext.P4 ledger extract, Ext.P6 guarantee agreement, and Ext.P5 acknowledgment of debt. Ext.P12 statutory notice was sent in time by the complainant, but the revision petitioner did not send reply to the notice. Exts.P10 and P11 documents will show that Ext.P9 cheque was bounced due to insufficiency of funds. The revision petitioner has no case otherwise that he had sufficient funds in his account to honour the cheque, or that the cheque was bounced on some other ground. He has also no case that he had made payment of the cheque amount as demanded in the statutory notice. The evidence on facts given by PWs1 and 2 stands not discredited, and the presumption available to the complainant under Section 139 of the N.I Act stands not rebutted in any manner. I find that the complainant has well proved the the offence under Section 138 of the N.I Act with all necessary elements and ingredients, and the complainant has also proved compliance of the statutory requirements in initiating prosecution. I find no illegality or irregularity or impropriety in the conviction made by the courts below.
6. As regards sentence also I find no scope for interference because the sentence imposed by the court below is the minimum possible under the law, and the amount of fine is only the cheque amount. Admittedly, the revision petitioner has not made payment of any amount in discharge of the debt incurred by him years back. In such a situation, the direction to pay the fine amount as compensation is quite legal and proper.
7. The learned counsel for the revision petitioner made a request to grant time for six months to the revision petitioner to remit the amount of fine in the trial court. In the particular facts and circumstances, including the amount involved, I feel it just and appropriate to grant some reasonable time to the revision petitioner. However, the amount being fine, and not compensation, the revision petitioner will have to execute a bond to the satisfaction of the trial court.
In the result, this revision petition is dismissed in limine, without being admitted to files. However, the revision petitioner is granted time for six months to remit the amount of fine in the trial court voluntarily, on failure of which steps shall be taken by the trial court to recover the amount of fine or enforce the default sentence. Time is granted on condition that the revision petitioner shall execute a bond with one surety for the fine amount to the satisfaction of the trial court within one month. He shall also surrender before the trial court within one month to serve out the sentence, till rising of the court.
Sd/- P.UBAID JUDGE //True Copy// P.A to Judge ab