Ponnappan vs Manappuram General Finance Leasing Limited

P. Ubaid, J.—A cheque for 33,551/- issued by the revision petitioner in favour of the 1st respondent in discharge of a debt incurred by him in a loan transaction was bounced due to insufficiency of funds. When he failed to make payment on demand, the 1st respondent brought complaint under Section 138 of the Negotiable Instruments Act in S.T. No. 900/2007 before the Judicial First Class Magistrate Court III, Thrissur.

The revision petitioner entered appearance and pleaded not guilty to the accusations. During trial the complainant examined one witness and marked Exts. P1 to P10. But the accused did not adduce any evidence in defence to prove or probabilise his case, disputing the correctness of the amount due, and that the cheque in question was handed over simply as a security. Accepting the evidence adduced by the complainant, the trial court found the revision petitioner guilty under Section 138 of the Negotiable Instruments Act. On conviction he was sentenced to undergo imprisonment for one month, and was also directed to pay a compensation of 33,551/- to the complainant under Section 357(3) Cr.P.C.

Aggrieved by the conviction and sentence, the accused approached the Court of Session, Thrissur with Crl. A No. 318/2011. In appeal the learned 1st Additional Sessions Judge, confirmed the conviction, but modified the sentence. Accordingly, the direction to pay compensation was altered to a fine sentence of 38,000/- from out of which 37,000/- was ordered to be given as compensation to the complainant.

Notice on admission was given to the 1st respondent. On hearing both sides, I find no reason or ground to admit the revision to files. With some modification in sentence this revision petition can be disposed of, however by granting some reasonable time to the revision petitioner to make payment of the amount due. PW 1 has given definite evidence proving the alleged transaction in which the revision petitioner incurred the debt, and also proving execution of Ext. P5 cheque. Exts. P6 and P7 documents will show that the cheque was bounced due to insufficiency of funds. The revision petitioner has no case otherwise that he had sufficient funds in his account to honour the cheque, or that the cheque was bounced on some other ground. Ext. P8 statutory notice was sent in time by the complainant, and the complaint was also filed in time. The transaction in which the revision petitioner incurred debt is further proved by Ext. P3 hypothecation agreement and Ext. P4 copy of statement of account. I find that the complainant has well proved the case on facts with all necessary elements and ingredients. I find no illegality, or irregularity or impropriety in the conviction made by the courts below.

I find that the sentence requires further modification in revision. The sentence can be modified and brought to the minimum possible under the law, when there is direction to pay compensation, and such a direction will do justice to the complainant. The appellate court altered the direction to pay compensation, and imposed a fine sentence of 38,000/-. But that much fine cannot be imposed. The direction of the trial court to pay compensation will have to be restored. For a direction to pay compensation under Section 357(4) Cr.P.C. some sentence is necessary under the law.

The learned counsel for the revision petitioner made a request to grant some reasonable time to the revision petitioner to make payment of compensation in the trial court. Time for three months as requested by him is felt reasonable.

In the result, this Criminal Revision Petition is disposed of as follows, without being admitted to files.

a) The conviction made by the courts below against the revision petitioner under Section 138 of the N.I. Act is confirmed.

b) The sentence imposed by the courts below is further modified in revision. Accordingly, the jail sentence is reduced to imprisonment till rising of the court.

c) The fine imposed by the appellate court is set aside, and instead the revision petitioner is directed to pay compensation of 38,000/- to the complainant under Section 357(4) Cr.P.C. with a default sentence of simple imprisonment for three months.

d) The revision petitioner will surrender before the trial court, to serve out the sentence, and to make payment of the compensation voluntarily within three months from this date, on failure of which steps shall be taken by the trial court to enforce the sentence and recover the amount of compensation, or enforce the default sentence.