The accused, in a prosecution initiated by the Kerala State Financial Enterprises Ltd., under Section 138 of N.I Act, is the revision petitioner herein, challenging the legality and propriety of the conviction and sentence against him. The case of the complainant is that a cheque for ₹25,208/- issued by the revision petitioner in discharge of a debt incurred by him in a loan transaction with the Kerala State Financial Enterprises Ltd. was bounced due to insufficiency of funds, and the revision petitioner failed to make payment inspite of statutory notice. The complaint was filed as C.C.No.46/2012 before the Judicial First Class Magistrate Court II, Vatakara.
2. The revision petitioner pleaded not guilty during trial, and thus faced trial. The Kerala State Financial Enterprises Ltd. examined PW1 and marked Exts.P1 to P7 during trial. The revision petitioner did not adduce any evidence, though he denied the incriminating circumstances regarding bouncing of the cheque, and failure to make payment inspite of statutory notice.
3. On an appreciation of the evidence the trial court found the revision petitioner guilty under Section 138 of N.I Act, and on conviction thereunder he was sentenced to undergo simple imprisonment for three months, and also to pay a fine of ₹25,208/-.
4. Aggrieved by the conviction and sentence the revision petitioner approached the Court of Session, Kozhikode with Crl.A No.623/2012. In appeal the learned Additional Sessions Judge (Fast Tract Adhoc II), Kozhikode confirmed the conviction and sentence, and accordingly dismissed the appeal by judgment dated 31.5.2013.
5. On hearing the learned counsel on both sides, and on a perusal of the case records, I find no ground or reason to admit the revision to files, or to interfere in the conviction made by the courts below under Section 138 of the N.I Act. I find that with some modification in sentence this revision can be allowed in part, without making any interference in conviction, and without being admitted to files.
6. PW1 examined on the side of the complainant has given definite evidence regarding the loan transaction in which the revision petitioner incurred debt, and also regarding the execution of the cheque in question. It appears that the revision petitioner has no dispute practically, regarding the facts alleged, including bouncing of the cheque issued by him. He has no explanation how the cheque bearing his signature came in the possession of the Kerala State Financial Enterprises, if not handed over in discharge of a legally enforceable debt or liability, and he has also no case that he had sufficient funds in his account when the cheque was presented for collection. However, Exts.P3 and P4 documents will show that Ext.P2 cheque issued by the revision petitioner was bounced due to insufficiency of funds. Ext.P5 notice was sent by the complainant in time, and the complaint was also filed well within time. The revision petitioner has no case that he had made payment of the cheque amount as demanded in the notice, and he has no explanation why reply was not sent to the statutory notice. Thus, I find that the complainant has well proved the offence punishable under Section 138 of N.I Act. He has also proved compliance of the statutory requirements in initiating the prosecution. I find no illegality or irregularity in the conviction.
7. Of course in the particular facts and circumstances some modification can be made in the sentence when the concern of the Kerala State Financial Enterprises is only to get the amount due, and not to send the revision petitioner to jail.
8. The learned counsel for the revision petitioner made a request to alter the fine sentence to a direction to pay compensation, so that the amount can be directly paid to the complainant in lump, or in instalments, if permitted by the complainant. This was not opposed by the other side. The learned counsel for the Kerala State Financial Enterprises submitted that the concern of the K.S.F.E is to get the amount at the earliest. In the interest of justice, I am inclined to allow this request, however with some enhancement in the amount. When the fine amount is altered to compensation, the revision petitioner will have to pay ₹27,000/-, which of course could be paid in instalments, if permitted by the complainant. Being compensation, payment can be made directly to the complainant, and if payment is not made in time, the complainant can very well approach the trial court for recovery of the amount of compensation.
In the result, this revision petition is allowed in part, to the very limited extent of slight modification in sentence in the interest of justice. The conviction made by the court below against the revision petitioner under Section 138 of the N.I Act is confirmed. The jail sentence imposed by the trial court will stand reduced to imprisonment till rising of the court, and the fine sentence will stand set aside. But the revision petitioner will pay ₹27,000/- as compensation under Section 357(4) Cr.P.C, with default sentence of simple imprisonment for three months. The revision petitioner is granted time for one month to surrender before the trial court to serve out the sentence, and he is also granted a period of three months from this date to make payment of the compensation to the complainant directly, in lump or in instalments, if permitted by the complainant. If the revision petitioner failed to make payment of compensation in time, the complainant can very well approach the trial court for recovery of the amount of compensation as fine, or enforce the default sentence imposed by this Court. The amount already deposited by the revision petitioner for suspension of sentence can be adjusted towards the amount of compensation, and it can be withdrawn by the complainant towards the amount of compensation.
P.UBAID JUDGE ab