Two cheques for a total amount of Rs.3,60,000/- issued by the revision petitioner in favour of the 1st respondent herein in discharge of a debt were dishonored due to insufficiency of funds. When the revision petitioner failed to make payment of the amount as demanded by the 1st respondent, he brought complaint before the Judicial First Class Magistrate Court -I, Aluva against the revision petitioner under Section 138 of the Negotiable Instruments Act (for short the 'N.I.Act'). The revision petitioner entered appearance and pleaded not guilty. The complainant examined himself and marked Exts.P1 to P9 in the trial court. Though the revision petitioner made a defence of total denial, he did not adduce any evidence in defence. On an appreciation of the evidence the trial court found him guilty. On conviction he was sentenced to undergo simple imprisonment for one year, and he was also directed to pay a compensation of Rs.3,60,000/- to the complainant under Section 357(3) Cr.P.C. 2. Aggrieved by the conviction and sentence, the revision preferred appeal before the Court of Sessions, Ernakulam as Criminal Appeal No.593/2010. In appeal, the learned Additional Sessions Judge (Adhoc-III), North Paravur confirmed the conviction and sentence, and accordingly dismissed the appeal. Now, in this revision, he challenges the legality and propriety of conviction and sentence.
3. On hearing both sides, and on perusal of case records, I find no scope for interference in the conviction made by the courts below. The complainant has given definite evidence proving the transaction in which the revision petitioner incurred a debt of Rs.3,60,000/-and also proving the execution of the Exts.P1 and P2 cheques in discharge of the debt. The Exts.P3 to P5 documents will show that two cheques were dishonored due to insufficiency of funds. The 1st respondent caused the Ext.P6 statutory notice in time, but the revision petitioner did not send reply to the notice. He has no case otherwise that he had funds in his account or that the cheques were bounced on some other ground. Admittedly, he has not made payment of any amount so far as demanded in the statutory notice or otherwise. I find that the complainant has well proved the offence punishable under Section 138 of the N.I Act with necessary elements and ingredients. He has also proved compliance of the statutory requirements in initiating prosecution.
4. During arguments the learned counsel for the revision petitioner submitted that the revision petitioner has already made payment of the entire amount of compensation ordered by the court below. In such a circumstance he made a request to modify the sentence. Of course payment of the cheque amount subsequently is not a legal ground for acquittal. Any way, such payment can be considered by the court in deciding the proper sentence. I find no illegality, irregularity or impropriety in the conviction, and so the conviction will have to be confirmed.
5. Of course in the given circumstances, where the debt stands discharged, though after the disposal of the appeal, I feel the necessity of reasonable modification in sentence. The request made by the learned counsel was not objected by the other side, and the learned counsel for the respondent submitted that the complainant has received the entire amount due from the revision petitioner. The direction made by the courts below to make payment of compensation can be set aside when payment stands already made directly to the party. However, the substantive sentence can be reduced to the minimum possible under the law.
In the result, this revision petition is allowed in part, confirming the conviction, however subject to modification in sentence. Accordingly, the jail sentence imposed by the courts below will stand reduced to imprisonment till rising of the court. In view of payment of the cheque amount directly made by the revision petitioner, the direction made by the courts below for payment of compensation under section 357(3) of Cr.P.C. will stand set aside. The revision petitioner will surrender before the trial court within one month from this date to serve out the sentence till rising of the court.
Sd/-P.UBAID JUDGE MJL