K.K. Pathrose vs N.P. Poulose

K. Harilal, J.—The revision petitioner is the accused in C.C. No. 256/99 on the files of the Judicial First Class Magistrate''s Court, Perumbavoor, as well as the appellant in Crl. Appeal No. 762/03 on the files of the Additional Sessions Court, North Paravur. He was prosecuted for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short ''the N.I. Act'') on a complaint filed by the 1st respondent herein.

It is the case of the 1st respondent that the revision petitioner had borrowed an amount of Rs. 1,50,000/- from the 1st respondent/complainant on 15/7/1998 and the accused had issued a cheque for Rs. 1,50,000/- drawn on the Service Co-operative Bank, Mudakkuzha Branch, in discharge of that liability. When the 1st respondent/complainant presented the cheque for collection, it was dishonoured with an endorsement "funds insufficient". Though the complainant had caused to issue a lawyer''s notice to the accused intimating the fact of dishonour of the cheque, he didn''t pay the cheque amount; nor did he send a reply denying the said liability. Thus, he has committed the offence punishable under Sec. 138 of the N.I. Act.

When the revision petitioner/accused was examined under Section 313 of the Cr.P.C., his contention was that Ext. P1 cheque was issued in blank form to one Kora Varghese, and the complainant has filed the complaint for and on behalf of the said Kora Varghese. After considering the evidence on record, the learned Magistrate found the revision petitioner guilty of the offence punishable under Sec. 138 of the N.I. Act and convicted him thereunder. He was sentenced to undergo simple imprisonment for six months and to pay a compensation of Rs. 1,50,000/- to the complainant under Sec. 357(3) of the Cr.P.C. and in default, to undergo simple imprisonment for a period of two months. Feeling aggrieved, though he had preferred the above Criminal Appeal, the appellate court, after re-appreciating the entire evidence on record, concurred with the findings of the trial court and dismissed the appeal. The legality and propriety of the findings whereby the court below convicted and sentenced him are under challenge in this revision petition.

It is the case of the revision petitioner that the courts below concurrently failed to appreciate the facts and evidence in its correct perspective. The trial court miserably failed to appreciate the defence contention in its correct perspective. Going by the judgment passed by the Appellate Court, after re-appreciating the entire evidence on record, the court below concurred with the finding of the trial court on a finding that the complainant had discharged his initial burden of proving the execution and issuance of cheque satisfactorily by examining the complainant himself as P.W.1 and also by producing Exts. P1 to P7, which disclose the statutory requirements under Section 138(b) of the N.I. Act. The case of the accused is that Ext. P1 cheque was a blank one issued to one Kora Varghese and the complainant has filed this complaint for and on behalf of Varghese. But the said Varghese is not examined before the Court. So also, no evidence was adduced in defence. No attempt was made by the complainant to prove that in fact the cheque was given to Kora Varghese. There should have been an earnest attempt to prove the possibility of defence contention in order to rebut the presumption under Sections 139 and 118(a) of the N.I. Act which stood in favour of the complainant. I do not find any reason to interfere with the finding that the complainant has successfully discharged the initial burden of proving execution and issuance of the cheque; but the accused has miserably failed to rebut the presumption under Sections 139 and 118(a) of the N.I. Act, which stood in favour of the complainant. There is no illegality or impropriety in the above findings and I do not find any kind of perversity in the appreciation of evidence from which those findings are arrived at.

In this Revision Petition it is also contended that the sentence imposed on the revision petitioner is excessive and disproportionate with the nature and gravity of the offence. The learned Magistrate has sentenced the accused to simple imprisonment for six months and to pay a compensation of Rs. 1,50,000/-. At this juncture, the nature and gravity of the offence under Section 138 of the N.I. Act considered by the Apex Court in various decisions assume significance.

The Supreme Court, in the decision in Kaushalya Devi Massand Vs. Roopkishore Khore, , held that the offence under Section 138 of the N.I. Act is almost in the nature of civil wrong which has been given criminal overtone, and imposition of fine payable as compensation is sufficient to meet the ends of justice. Further, in R. Vijayan Vs. Baby and Another, , Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic. So, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect.

In the light of the above decisions, I am of the view that the sentence imposed on the revision petitioner is excessive and disproportionate with the nature and gravity of the offence. Consequently, the substantive sentence of simple imprisonment for six months will stand reduced to simple imprisonment for one day till rising of the Court. The accused shall undergo simple imprisonment for one day till rising of the Court. Besides he shall pay a compensation of Rs. 1,50,000/- (Rupees One lakh fifty thousand only) to the complainant under Section 357(3) of the Cr.P.C. and in default of payment of compensation he shall undergo simple imprisonment for three months.

This Revision Petition is allowed in part.