J. Sreenivas, K.R. Nagar Road, Hunsur Mysore District, Karnataka State vs K. Sivadas @ Shaji and State of Kerala

P. Bhavadasan, J.—The accused was prosecuted for the offence punishable u/s 138 of the Negotiable Instruments Act. He was found guilty and was therefore, convicted and sentenced to suffer simple imprisonment for a period of one month and to pay a compensation of Rs.66,000/-, in default of payment of which, he shall suffer simple imprisonment for a period of fifteen days. In appeal, the appellate court confirmed the conviction and sentence and dismissed the appeal. According to the complainant, the accused owed an amount of Rs.66,000/- to the complainant and in discharge of the said liability, the accused had issued Ext.P1 cheque for Rs.66,000/- to him, which, on presentation, was returned for want of funds in the account of the accused. To the statutory notice issued to the accused, there was no response from him. Since the amount remained unpaid, a complaint was filed.

The trial court took cognizance of the offence. On appearance of the accused, the particulars of the offence were read out to him to which, he pleaded not guilty and claimed to be tried. Therefore, the prosecution examined PW1 and had Exts.P1 to P6 marked. After close of the complainant''s evidence, the accused was questioned u/s 313 of Cr.P.C. He denied all incriminating circumstances brought out in evidence against him and maintained that he is innocent.

The trial court, on an appreciation of the evidence in the case, came to the conclusion that the offence has been made out. Accordingly, the accused was found guilty of the offence u/s 138 and therefore, convicted and sentenced him as already mentioned. In appeal, the conviction and sentence were confirmed.

The learned counsel for the revision petitioner, at the time of hearing the revision petition, submitted that he is not addressing this court on the merits of the case, but his only prayer is that some leniency may be shown to the petitioner regarding the sentence awarded by the courts below. According to the learned counsel, the sentence awarded is too severe and harsh and it is disproportionate to the offence made out against him.

Even though the accused denied all the incriminating circumstances, he set up no particular defence against the plea put forward by him. The complainant was examined as PW1 and Exts.P1 to P6 were marked. He spoke about the amount due to him from the accused and the issuance of Ext.P1 cheque to him by the accused. Except for bare denial of the same, the accused did not choose to adduce any evidence in support of his defence. There is no reason to disbelieve the version given by the complainant as PW1. The courts below have found that the cheque was duly executed by the accused and were also of the opinion that in such circumstances, the complainant is entitled to take the aid of the presumptions available u/s 139 and 118 of the NI Act. There was no attempt from the side of the accused to rebut the said presumptions. Moreover, the courts below have also found that to the statutory notice issued by the complainant, no reply was furnished by the accused. The findings of the courts below are based on appreciation of evidence. There is nothing to show that the findings are either perverse or unwarranted by the evidence on record, warranting interference under the revisional jurisdiction and the revision petition is only to be dismissed.

What now remains is the plea regarding sentence raised by the revision petitioner. On going through the lower court judgments, it is seen that the sentence is too harsh and disproportionate to the offence. So, it is felt that some leniency can be shown to the petitioner regarding the sentence awarded.

In the result, while confirming the conviction of the petitioner u/s 138 of the Negotiable Instruments Act, the sentence imposed on him by the courts below is set aside and the accused is sentenced to undergo simple imprisonment till the rising of the court and to pay a sum of Rs.66,000/- as compensation to the complainant within two months from today after adjusting Rs.22,000/- said to have been deposited by the accused before the trial court, failing which, the default clause imposed by the trial court will take effect.

The revision petition is disposed of as above.