Sri S. Murugesha Chetty vs Sri R. Nagaraju

A.N. Venugopala Gowda

Petitioner was found guilty by the Trial Court and was convicted for an offence under S. 138 of the Negotiable Instruments Act ("the Act" for short) and was sentenced to pay fine of Rs. 4,00,000/-, in default of payment of fine, to undergo simple imprisonment for a period of 6 months. Out of the fine amount, Rs. 3,95,000/- was ordered to be paid as compensation to the complainant. Accused/petitioner filed Criminal Appeal in the Sessions Court. Appeal was dismissed. However, the sentence imposed was modified reducing the fine amount payable to Rs. 3,50,000/-, out of which Rs. 3,00,000/- was ordered to be paid to the complainant towards compensation in respect of the bounced cheque. Challenging the said judgments, accused has filed this Criminal Revision Petition. Sri D.L. Suresh, Learned Counsel appearing for the petitioner, upon obtaining instruction from the petitioner, who is present before the Court, submitted that Ex. P1 was issued for payment of Rs. 2,50,000/- and that the petitioner has deposited Rs. 62,500/-, on 7.4.2010. He submitted that the fine amount imposed being excessive, the same be modified and that the petitioner would deposit Rs. 20,000/- at the end of every month to avoid custodial sentence.

Sri Somashekar Kashimath on the other hand supported the impugned Judgment.

Perused the record. Issuance of cheque Ex. P1, its return by the bank vide Ex. P2 on the ground of ''insufficient funds'' and the demand made as per Ex. P3 for payment of the cheque amount, are not in challenge. Petitioner replied to Ex. P3 as per the reply notice Ex. P8. Complainant has deposed and has examined a witness and has marked Exs.P1 to P12. Accused was examined under S. 313 Cr.P.C. and it is a case of denial. His son deposed as DW.1. The complainant by producing Exs.P1, P2 and P3 and deposing as PW.1 has met the ingredients of S. 138 of the Act. The burden of proof having been shifted to the accused, the evidence adduced by him by examining his son as DW.1 being formal in nature and the defence having not been probablised, the learned Magistrate is justified in finding the petitioner/accused guilty of the offence under S. 138 of the Act. The sentence imposed on the petitioner having found to be excessive was modified by the Appellate Court, by reducing the fine amount from Rs. 4,00,000/- to Rs. 3,50,000/-. In the circumstances, the petitioner has rightly not pursued the challenge to the judgment of conviction for the offence under S. 138 of the Act. The submission of the Learned Counsel for petitioner is confined only to quantum of sentence.

The cheque having been issued for payment of Rs. 2,50,000/-, the appellate Court while modifying the sentence has reduced the fine amount to Rs. 3,50,000/- and has directed Rs. 3,00,000/- therefrom, when realised be paid to the complainant as compensation. Keeping in view the facts and circumstances of the case, in my opinion, it would meet the ends of justice to reduce the fine amount from Rs. 3,50,000/- to Rs. 3,01,000/-. If the fine amount were to be realsised, Rs. 3,00,000/- therefrom be paid to the complainant as compensation. The amount in deposit i.e., Rs. 62,500/- be released in favour of the complainant. The balance fine amount, if not deposited on or before 31.1.2013, the bail bond shall stand cancelled and the petitioner shall surrender to undergo the custodial sentence ordered by the learned Magistrate, i.e., simple imprisonment for a period of 6 months. The balance fine amount if were to be deposited/ realised, the complainant be paid the compensation amount as above.