The legality and propriety of conviction and sentence under Section 138 of the Negotiable Instruments Act are under challenge in this revision brought by the accused in C.C 648/2008 of Judicial First Class Magistrate, Pattambi. A cheque issued by the revision petitioner in favour of the second respondent for ` 1,25,672/- in discharge of a debt incurred in a loan transaction was dishonoured due to insufficiency of funds. When he failed to make payment on demand the second respondent initiated prosecution in the trial court. 2. The revision petitioner entered appearance and pleaded not guilty to the accusations. The complainant examined its Secretary as PW1 and marked Exts. P1 to P12. The accused (revision petitioner) did not adduce any oral evidence in defence. However Ext. D1 proving payment of ` 25,000/- was marked during trial. On an appreciation of the evidence adduced by the complainant the trial court found the revision petitioner guilty. On conviction he was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 1,00,672/-.
3. Aggrieved by the conviction and sentence the revision petitioner approached the court of Sessions, Palakkad with Crl. A 362/2013. In appeal the learned third Additional Sessions Judge, confirmed the conviction, but modified the sentence. Accordingly the jail sentence was reduced to simple imprisonment for one month. However the fine sentence, with direction to pay compensation, was maintained.
4. On hearing the learned Counsel, for the revision petitioner and on a perusal of the case records I find no reason or scope to admit the revision to files. PW1 examined on behalf of the complainant society has given evidence on facts proving the debt incurred by the revision petitioner and also proving execution of the Ext. P1 cheque in discharge of that debt. The case of the complainant on facts is further proved by the Ext. P8 loan application submitted by the revision petitioner, the Ext. P9 agreement, the Ext. P10 promissory note and also the Ext. P11 receipt issued by the revision petitioner. That the Ext. P1 cheque was bounced due to insufficiency of funds is further proved by the Exts.P2 to P4 documents. The revision petitioner has no case that he had sufficient funds in his account to honour the cheque, or that it was bounced on some other ground. The revision petitioner has also no explanation why he did not send reply to the Ext. P5 statutory notice caused by the complainant in time. The complaint was also filed in time by the complainant. The debt incurred by the revision petitioner, and also execution of the cheque in question in discharge of that liability stands well proved by evidence, and the complainant has also proved compliance of the statutory requirements in initiating prosecution. I find no illegality or irregularity or impropriety in the conviction made by the courts below.
5. As regards sentence I find that some reasonable modification can be made in the interest of justice, when the concern of the complaint is to get the amount due, and not to send the accused to jail. Pending the proceedings some amount was paid by the accused to the society. When there is direction to pay the fine amount as compensation, modification by way of reduction in the sentence will not cause any prejudice or hardship to the complainant. Accordingly, I feel that the sentence can be reduce to the minimum possible under the law. With this modification, this revision petition can be disposed of, without being admitted to files.
In the result this revision petition is disposed of as follows:
a. The conviction against the revision petitioner under Section 138 of Negotiable Instruments Act will stand confirmed.
b. The jail sentence imposed by the trial court, and modified in appeal by the appellate court, will stand reduced to imprisonment till rising of the court.
c. The fine sentence imposed by the courts below, with default sentence thereon, is maintained.
d. The revision petitioner will surrender before the trial court within one month to serve out the sentence. As regards fine sentence he is given time for six months as requested by the learned Counsel, to remit the amount of fine in the trial court voluntarily, on condition that a bond with one surety for the fine amount, shall be executed to the satisfaction of the trial court within one month. In case of failure to remit the amount of fine within time, steps shall be taken by the trial court to recover the amount of fine or enforce default sentence.
sab P.UBAID, JUDGE