In discharge of an amount of ₹ 1,00,000/- borrowed by the revision petitioner from the 1st respondent, the revision petitioner issued a cheque dated 15.2.2007. When the 1st respondent presented it for collection, the cheque was bounced due to insufficiency of funds, and the revision petitioner failed to make payment in spite of statutory notice. In such a situation, the 1st respondent brought complaint before the Judicial Magistrate of the First Class-II, Thiruvananthapuram alleging the offence punishable under Section 138 of the Negotiable Instruments Act. 2. The revision petitioner entered appearance and claimed to be tried. The complainant examined himself as PW1 and marked Exts.P1 to P6 during trial. The revision petitioner denied the incriminating circumstances, when examined under Section 313 of Cr.P.C. But, he did not adduce any evidence in defence to prove or probabilise his case, that he had no connection or transaction with the complainant, that the cheque in question was handed over to one Lakshmanan and that the complainant somehow procured the cheque from Lakshmanan and filed a false complaint.
3. On an appreciation of the evidence adduced by the complainant, the trial court found him guilty under Section 138 of the Negotiable Instruments Act. On conviction, he was sentenced to undergo simple imprisonment for six months and was also directed to pay a compensation of ₹ 1,00,000/- with interest at the rate of 9% per annum from 15.2.2007 till realisation.
4. Aggrieved by the conviction and sentence, the revision petitioner approached the Court of Session with Crl.A.No.19 of 2013. In appeal, the learned Additional Sessions Judge, Neyyattinkara confirmed the conviction and sentence, and accordingly, dismissed the appeal by judgment dated 26.2.2014. Now the accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence.
5. Notice on admission was given to the 1st respondent. On hearing both both sides and on a perusal of the case records, I find no reason or ground to admit this revision to files. I find that with some slight modification in sentence, this revision can be allowed in part.
6. The complainant has given definite and satisfactory evidence proving the alleged transaction in which the revision petitioner incurred a debt of ₹ 1 lakh and also proving the execution of Ext.P1 cheque. Exts.P2 and P3 documents will show that the cheque was bounced due to insufficiency of funds. The evidence given by the complainant, on facts, including the reason for dishonbour stands not discredited. Suggestions put by the defence were denied by the complainant. There is absolutely nothing to probabilise the case of defence that Ext.P1 cheque was in fact procured by the complainant somehow from one Lakshmanan or that the cheque leaf was handed over to Lakshmanan by the revision petitioner. If at all such a defence case could be accepted, there is absolutely no explanation why the said Lakshmanan himself could not have filed a complaint against the revision petitioner. Thus, the defence version appears to be quite improbable. Anyway, the complainant has well discharged his burden and the presumption available to him under Section 138 of the Negotiable Instruments Act stands not in any manner rebutted. Ext.P4 statutory notice was sent by the complainant in time, and the complaint was also filed by him in time. The revision petitioner has no explanation why he did not send reply to the statutory 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 offence punishable under Section 138 of the negotiable Instruments Act with all the necessary elements and ingredients including compliance of the statutory requirements for initiating prosecution. I find no illegality or irregularity in the conviction made by the courts below.
7. Of course, the concern of the complainant is to get the money due from the revision petitioner because he has not so far initiated civil action against the revision petitioner. When his real concern is not to send the revision petitioner to jail, I feel that the sentence imposed by the trial court and confirmed in appeal can be reduced to the minimum possible under the law and the amount of compensation also can be fixed as a definite amount inclusive of the interest so far accrued and also the cost incurred by the revision petitioner. I feel that ₹1,50,000/-
will be the adequate amount of compensation as a definite sum. With the above modification, this revision can be allowed in part, in the presence of the complainant.
8. The learned counsel for the revision petitioner made a request to grant some reasonable time to the revision petitioner to make payment of the compensation. Though not fully consented, the learned counsel for the respondent submitted that some reasonable time can be granted in the interest of justice. I feel that time for six months can be granted to the revision petitioner, and subject to this, the revision can be allowed in part.
In the result, this revision petition is allowed in part, confirming the conviction against the revision petitioner under Section 138 of the Negotiable Instruments Act, however, with some modification in sentence. Accordingly, the jail sentence imposed by the courts below will stand reduced to imprisonment till rising of the court. The direction to pay compensation will stand modified, that the amount of sum payable shall be a definite sum of ₹ 1,50,000/- with the default sentence imposed by the trial court. The revision petitioner is granted six months' time, as requested by him, to surrender before the trial court to serve out the sentence and make payment of the compensation voluntarily, on failure of which, steps shall be taken by the trial court to enforce the sentence and recover the amount of compensation, or enforce the default sentence.
ma /True copy/ Sd/- P.UBAID JUDGE P.S to Judge