In a transaction of purchase of 150 bags of cement long back in November 1993, the revision petitioner herein incurred a debt of Rs. 19,350 (Rupees nineteen thousand three hundred and fifty only). In discharge of the said amount he issued a check in favour of the first respondent on 16.11.1993 but the said cheque was dishonoured due to insufficiency of funds when the first respondent presented it for collection in the bank. When the revision petitioner failed to make payment as demanded in the statutory notice caused by the first respondent, he preferred complaint before the Judicial First Class Magistrate Court I, Chengannur alleging the offence under Section 138 of the Negotiable Instruments Act. 2. The revision petitioner entered apperance and pleaded not guilty. The complainant (First Respondent herein) examined himself as PW1 and marked Exts. PW1 to PW9 during trial. When examined under Section 313 Cr.P.C also the revision petitioner denied the incriminating circumstances. No evidence in defence was adduced by the revision petitioner. On an appreciation of the evidence the trial court found him guilty under Section 138 of the Negotiable Instruments Act. On conviction he was sentenced to undergo simple imprisonment for three months and to pay fine of Rs. 5,000/- (Rupees five thousand only).
3. Aggrieved by the conviction and sentence the revision petitioner brought appeal before the Court of Session as Crl. A 25/97. In appeal, the learned Additional Sessions Judge II, Mavelikkara confirmed the conviction and sentence, and accordingly dismissed the appeal. In this revision the accused challenges the legality and propriety of the conviction and sentence.
4. Inspite of notice the first respondent (complainant) did not turn up to contest this revision. On hearing the learned counsel for the revision petitioner and on a perusal of the case records I find that the complainant has well proved the offence punishable under Section 138 of Negotiable Instruments Act. He has given definite evidence proving the transaction of purchase of 150 bags of cement from him by the acccused and also proving the execution of Ext. P1 cheque for Rs. 19,350/- towards cost of the cement purchased.
5. The Ext. P2 and P3 docuements will show that the Ext. P1 cheque was bounced due to insufficecy of funds. The revision petitioner has no case that he had sufficient funds in his account, or that the cheque was bounced on some other ground. The complainant caused statutory notice in time, but the revision petitioner did not reply or make payment of the cheque amount. I find that the complainant has well proved the case on facts with the necessary elements and ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act, including complaince of the statutory requirements. I find no illegality or irregularity or impropriety in the conviction made by the court below.
6. Of course, the amount due from the revision petitioner in 1993 was Rs. 19,350/-. Now we are in 2014. The revision petitioner has no excuse or reason for not making payment of the amount due, for the last 21 years. In such a situation it would be just and appropriate to direct him to make payment of a reasonbale amount to the complainant, and for the said purpose the fine sentence can be set aside and a direction for compensation can be made in revision under Section 357 (4) Cr.P.C. As regards the jail sentence also I find that there can be a modification by reducing it to the minimum possible under the law, when the complainant's concern is only to get the amount due, and not to send the accused to jail. There is no doubt that he will get justice when the accused is directed to make payment of a reasonable amount inclusive of the interest accrued over the years.
7. In the result this revision petition is allowed in part, confirming the conviction under Section 138 of Negotiable Instruments Act, however subject to modification in sentence. Accordingly the sentence will stand modified as follows:
a. The jail sentence imposed by the court below will stand reduced to imprisonment till rising of the court.
b. The fine sentence imposed by the court below will stand set aside.
c. The revision petitioner is directed under Section 357 (4) Cr.P.C to make payment of a compensation of Rs. 40,000/- to the first respondent (complainant). In case of default to make payment the revision petitioner will have to undergo simple imprisonment for two months.
The revision petitioner will surrender before the trial court to serve out the sentence and make payment of the compensation voluntarily, within one month from this date, 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.
sab P.UBAID, JUDGE