The revision petitioner and the 1st respondent herein are friends. The 1st respondent brought a complaint against the revision petitioner before the Additional Chief Judicial Magistrate Court, (Economic Offence), Ernakulam as C.C.No.1702/2010 under Section 138 of N.I Act, on the allegation that a cheque issued by the revision petitioner for an amount of ₹75,000/- in discharge of the amount borrowed by him was dishonoured due to insufficiency of funds, and inspite of statutory notice he did not make payment of the cheque amount.
2. The revision petitioner pleaded not guilty before the learned Magistrate, and claimed to be tried. Two witnesses including the complainant were examined, and Exts.P1 to P8 were marked on the side of the complainant. The revision petitioner examined himself as DW1 and marked Ext.D1.
3. On an appreciation of the evidence, the trial court found the revision petitioner guilty under Section 138 of N.I Act. On conviction he was sentenced to undergo imprisonment till rising of the court, and was also directed to pay a compensation of ₹95,000/- under Section 357(3) Cr.P.C.
4. Aggrieved by the conviction and sentence the revision petitioner approached the Court of Session, Ernakulam with Crl.A No.71/2012. In appeal the learned Additional Sessions Judge VII, Ernakulam confirmed the conviction and sentence, and accordingly dismissed the appeal by judgment dated 4.10.2013. Now the accused is before this Court challenging the legality and propriety of the conviction and sentence.
5. On hearing the learned counsel and on a perusal of the case records, I find no scope or reason to admit the revision to files. The complainant examined as PW1 has given definite and consistent evidence regarding the alleged transaction of borrowal, and also regarding the issuance of Ext.P1 cheque in discharge of the said debt. This evidence stands not in any manner discredited. Thus the complainant has discharged the initial burden, and the presumption available to him under Section 139 of N.I Act stands not rebutted by the evidence adduced by the complainant or the document produced by him. Exts.P2 and P3 documents will show that the cheque was bounced due to insufficiency of funds in the account of the revision petitioner. He has no case that it was bounced on some other ground, or that he had sufficient funds to honour the cheque. Ext.P4 statutory notice was sent by the complainant in time, and the complaint was also filed well within time. The revision petitioner has no explanation why reply was not sent to the statutory notice, and he has no case that he had paid the cheque amount as demanded in the statutory notice. That PW2 has obtained a decree against the revision petitioner will not in any manner prove his case otherwise, that a cheque handed over by him to PW2 was somehow procured by the complainant to file a complaint like this. I find that the complainant has well proved the offence punishable under Section 138 of N.I Act with the necessary elements and ingredients. The complainant has also proved compliance of the statutory requirements in initiating prosecution. I find no illegality or irregularity in the conviction or in the sentence. The direction to pay compensation was made by the courts below with the object of doing substantial justice to the complainant, who has not initiated civil action for realisation of the cheque amount. I find that this revision is liable to be dismissed.
6. The learned counsel for the revision petitioner made a request to grant four months time to the revision petitioner to make payment of the compensation in the trial court. Considering the facts and circumstances, including the amount of compensation, I feel that three months' time can be granted 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 granted time for three months from this date to surrender before the trial court, to serve out the sentence, and to make payment of 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