The accused in C.C.No.359/2002 on the file of the Judicial First Class Magistrate Court, Varkala is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the second respondent/complainant against the revision petitioner alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). 2. The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs.4 lakhs and in discharge of that liability, he had issued Ext.P1 cheque, which when presented was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo. The complainant issued Ext.P6 notice vide Ext.P3 postal receipt and the same was received by the revision petitioner evidenced by Ext.P7 postal acknowledgment. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Act. Hence the complaint.
3. When the revision petitioner appeared before the court below, particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P7 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that he had borrowed an amount of Rs. 4 lakhs and issued a blank signed cheque as security and the cheque was not issued in discharge of any liability. Further after filing the complaint, he had paid Rs.80,000/- to the complainant. In order to prove the case of the revision petitioner, the revision petitioner himself was examined as DW1 and two witnesses were examined as Dws 2 and 3. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act, convicted him thereunder and sentenced him to undergo simple imprisonment for six months and also to pay Rs.3,20,000/- as compensation to the complainant, in default to undergo simple imprisonment for six months under Section 357 (3) of the Code. Aggrieved by the same, the revision petitioner filed Crl.A.No.581/2005 before the Sessions Court, Thiruvananthapuram, which was made over to the Additional Sessions Court, Fast Track Court-I, Thiruvananthapuram for disposal and the learned Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed by the court below. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below.
4. Though notice was served on the second respondent, he did not choose to appear.
5. Heard the counsel for the revision petitioner and the learned Public Prosecutor appearing for the first respondent.
6. The counsel for the revision petitioner submitted that in the civil suit, the entire amount has been realized by filing execution petition and the execution petition was closed as satisfied. Further, the courts below have not properly understood the evidence and the sentence imposed is harsh.
7. The learned Public Prosecutor supported the concurrent findings of the court below.
8. I have gone though the discussions of the courts below on evidence and also I have gone through the evidence given by PW1 and Dws 1 to 3 on this aspect. On appreciation of the evidence and also considering the fact that civil suit filed by the complainant has been decreed against the revision petitioner, the courts below were perfectly justified in coming to the conclusion that the revision petitioner had borrowed a sum of Rs.4 lakhs and in discharge of that liability, issued Ext.P1 cheque and since he did not pay the amount when the complainant issued notice demanding payment intimating dishonour, he had committed the offence punishable under Section 138 of the Act and so courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below on this aspect do not call for interference.
9. As regards the sentence is concerned, the trial court has sentenced the revision petitioner to undergo simple imprisonment for six months and also to pay compensation of Rs.3,20,000/- taking into account that Rs.80,000/- was paid during the pendency of the proceedings with default sentence of six months under Section 357(3) of the Code and that was confirmed by the court below. Considering the fact that the second respondent had already filed O.S.No.101/2004 for realizing the amount on the basis of the same cheque and that case was decreed and in E.P.No.2/2009, an amount of Rs.5,93,000/- has already been recovered from the revision petitioner, who is the defendant in that case, which is evidenced from the report of the Sub Court, Attingal, this Court feels that some leniency can be shown in the sentence aspect. Since the amount covered by the cheque has already been recovered, no substantive sentence need be imposed. But at the same time, the amount recovered after the offence was completed is not a ground for exonerating him from the criminal liability as well, but that can be taken as a mitigating circumstance to show some leniency. Considering this aspect, this Court feels that leniency can be shown and imposing fine of Rs.10,000/- with default sentence of one month simple imprisonment will be sufficient to meet the ends of justice. So the sentence imposed by the court below is set aside and modified as follows:
The revision petitioner is directed to pay fine of Rs.10,000/-, in default to undergo simple imprisonment for one month. If the revision petitioner has already deposited any amount before the court below as directed by this Court, then the court below is directed to adjust that amount towards this amount.
With the above modification of the sentence alone, this revision petition is allowed in part and disposed of accordingly.
Office is directed to communicate this order to the court below at the earliest.
Sd/-
K.RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge