Akkarammal Mohammed vs P. Damodaran

R. Basant, J.—This revision petition is directed against a concurrent verdict of guilty and conviction in a prosecution u/s 138 of the Negotiable Instruments Act. The cheque is for an amount of Rs. 25,000/-. It bears the date 08/05/1995. Signature in the cheque is admitted. Dishonour is also not disputed.

The complainant examined himself as PW1 and proved Exts.P1 to P5. Notice of demand though duly received and acknowledged did not evoke any response. The accused did not adduce any defence evidence. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable u/s 138 of the N.I Act. Accordingly they proceeded to pass the impugned concurrent judgments. The trial court imposed a sentence of rigorous imprisonment for a period of one year and to pay a fine of Rs. 50,000/-. That sentence was modified by the appellate court. The petitioner now faces a sentence of rigorous imprisonment for a period of one year and to pay a fine of Rs. 5,000/- and in default to undergo simple imprisonment for a period of one month. No direction for payment of compensation is issued at all.

Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned Counsel for the petitioner assails the impugned order on the following grounds only:

(i) The courts below ought to have held that the statutory time table has not been followed strictly inasmuch as the notice of demand was not issued within 15 days of the date of intimation of dishonour.

(ii) The sentence imposed is excessive.

No other contentions are raised. I am satisfied that all the ingredients of the offence punishable u/s 138 of the N.I. Act are proved. It is unnecessary to advert to other facts and circumstances in this order. I shall straightaway proceed to consider the first ground of challenge.

The cheque was presented for encashment through the bank of the complainant. The bank of the complainant sent the cheque to the drawee bank. The drawee bank dishonoured the same and sent the cheque along with the dishonour memo dated 16/5/95 to the complainant''s bank. The complainant''s bank by memo dated 22/5/95 informed the complainant of the dishonour of the cheque. It is thereafter that Ext.P3 notice dated 5/6/95 was issued on behalf of the complainant.

Reckoned from the date of dishonour of the drawee bank the period of 15 days had elapsed on the date when Ext.P3 notice was issued. But it is crucial to note that notice is to be issued not within 15 days of the date of dishonour; but within 15 days of the receipt of information by him from the bank regarding return of the cheque as unpaid.

In the instant case, the complainant had along with the complaint produced both memos of dishonour dated 16/5/95 (drawee bank) and 22/5/95 (collecting bank). The complainant in the notice of demand had made it crystal clear that the dishonour was so intimated to him by notice dated 22/5/95. He had asserted so when he was examined as P.W.1. Significantly, there was no cross-examination on that aspect at all. Both memos of dishonour are available in the file. The complainant evidently wanted to mark the notice of dishonour dated 22/5/95 issued by his bank to him. It is seen that both those documents are marked as Ext.P2. The endorsement of marking the exhibit on the dishonour memo dated 22/5/95 is seen scored off and the endorsement is seen made on the memo dated 16/5/95.

The materials produced clearly show that the complainant was informed of the dishonour only by memo dated 22/5/95. So reckoned Ext.P3 notice has been given within 15 days of the date of receipt of information about the dishonour. The challenge raised is thus found to be without any substance.

Coming to the question of sentence, I find merit in the prayer of the learned Counsel for the petitioner. I have already adverted to the principles governing imposition of sentence in a prosecution u/s 138 of the N.I Act in the decision reported in Anilkumar v. Shammi 2002(3) KLT 852. The cheque is for an amount of Rs. 25,000/-. It bears the date 8/5/95. I am satisfied that there are no compelling reasons which can persuade this Court to insist on imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown on the question of sentence, but subject only to the compulsion of ensuring adequate and just compensation for the victim/complainant, who has been compelled to fight three rounds of legal battle by now and to wait from 1995 for the redressal of his grievances. He deserves to be compensated satisfactorily. The challenge can succeed only to the above extent.

In the result:

(a) This Crl.R.P is allowed in part.

(b) The impugned verdict of guilty and conviction of the petitioner u/s 138 of the N.I Act are upheld;

(c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the court below, he is sentenced to undergo imprisonment till rising of court. He is further directed to pay an amount of Rs. 37,500/- as compensation u/s 357(3) Cr.P.C and in default to undergo simple imprisonment for a period of three months. If the amount is not paid directly to the complainant and is deposited or recovered through court, the same shall be released to the complainant entirely.

The petitioner shall have time till 29/6/09 to make the payment and avoid the default sentence. The modified sentence hereby imposed shall not be executed till that date. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before that date for execution of the modified sentence hereby imposed.