The revision petitioner herein faced prosecution before the Judicial First Class Magistrate Court I, Hosdurg in C.C.No.1436/2009 under Section 138 of N.I Act, on a complaint brought by the 1st respondent herein, on the allegation that a cheque for ₹1,50,000/- issued by the revision petitioner in discharge of the amount borrowed by him, was bounced due to insufficiency of funds, and he failed to make payment inspite of statutory notice.
2. The revision petitioner entered appearance in the trial court and claimed to be tried on a plea of not guilty. The complainant examined himself as PW1 and marked Exts.P1 to P6 documents during trial. The revision petitioner did not adduce any evidence in defence though he denied the incriminating circumstances when examined under Section 313 Cr.P.C.
3. On an appreciation of the evidence adduced by the complainant, the trial court found the revision petitioner guilty under Section 138 of N.I Act. On conviction thereunder he was sentenced to undergo simple imprisonment for three months. He was also directed to pay a compensation of ₹1,50,000/- to the complainant under Section 357(3) Cr.P.C.
4. Aggrieved by the conviction and sentence the revision petitioner approached the Court of Session, Kasaragod with Crl.A No.121/2013. In appeal the learned Sessions Judge, Kasaragod confirmed the conviction, but modified the sentence. Accordingly, the appeal was allowed in part reducing the term of sentence to imprisonment till rising of the Court. The direction to pay compensation was maintained in appeal. Now the accused is before this Court, challenging the legality and propriety of the conviction and sentence in revision.
3. On hearing the learned counsel for the revision petitioner on admission, and on a perusal of the case records, I find no reason or ground to admit this revision to files. The complainant has given definite evidence proving the alleged transaction of borrowal, and also proving execution of Ext.P1 cheque in discharge of the said cheque. This evidence stands not discredited. The presumption available to the complainant on discharge of the initial burden, stands not rebutted in any manner. The accused did not adduce any evidence to prove or probabilise his case that he is not liable to pay any amount under Ext.P1 cheque. Exts.P2 and P3 documents will show that the cheque was bounced due to insufficiency of funds. The revision petitioner has no case or explanation how the cheque bearing his signature came in the hands of the complainant, or that the cheque was bounced on some other ground. Ext.P4 notice was sent by the complainant in time, and the complaint was also filed well within time. The revision petitioner did not send reply to the notice, and he has also no case that he had made payment of the cheque amount as demanded in the notice. Thus I find that the complainant has well proved the necessary elements and ingredients to constitute the offence punishable under Section 138 of N.I Act against the revision petitioner, and he has also well proved compliance of the statutory requirements for prosecution. Accordingly, I find no illegality or irregularity in the conviction made by the two courts below.
4. As regards sentence also I find no scope for interference because practically the sentence is only till rising of the court, though it is described as imprisonment for one day. Imprisonment till rising of the Court is the minimum possible under the law, and the direction to pay compensation was made by the courts below with a view to do substantial justice to the complainant, who has not so far initiated civil action for realisation of the amount. The said direction also does not require any interference.
6. The learned counsel for the revision petitioner made a request to grant seven months time to the revision petitioner to make payment of the compensation. Of course considering the amount due and the other circumstances, I feel that a reasonable time for six months can be granted to the revision petitioner to make payment of the compensation. Subject to this, this revision can be dismissed in limine.
In the result, this revision petition is dismissed in limine without being admitted to files. However, the revision petitioner is given time for six months from this date to surrender before the trial court to serve out the sentence, and to make payment of the compensation voluntarily, on failure of which steps shall be taken by the trial court to enforce the sentence and to recover the amount of compensation, or impose the default sentence.
P.UBAID JUDGE ab