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Judgment
R. Basant, J.—This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution u/s 138 of the N.I. Act.
The cheque is for an amount of Rs. 22,367/-. The petitioner now faces a sentence of S.I. for a period of one month. There is also a direction to pay an amount of Rs. 15,000/- as compensation and in default to undergo S.I. for a further period of 15 days.
The signature in the cheque is admitted. That there was a hire purchase agreement, Ext.P7, between the parties is not disputed. The notice of demand, though duly received and acknowledged, did not admittedly evoke any response. The complainant came to court with the complaint u/s 138 of the N.I. Act scrupulously following the statutory time table. PW 1 was examined and Exts. P1 to P8 were marked. The accused did not adduce any evidence - oral or documentary.
The courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable u/s 138 of the N.I. Act. Accordingly they proceeded to pass the impugned concurrent judgments.
Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned Counsel for the petitioner only reiterates the contention that the cheque was not issued for the due discharge of any legally enforcible debt/liability, but was issued as security when the hire purchase agreement was entered into.
We have the oral evidence of PW 1 about the circumstances under which Ext. P2 cheque admittedly written on a cheque leaf issued to the petitioner by his bank to operate his account travelled from the possession of the petitioner to that of the complainant. Admittedly amounts are due under the hire purchase agreement to the complainant. The last trace of doubt if any on this aspect is laid to rest when we consider that the notice of demand though duly received and acknowledged didnot admittedly evoke any response. No defence evidence whatsoever was adduced before the trial court also. I do not, in these circumstances, find any merit in the contentions raised about the validity of the verdict of guilty and conviction.
Counsel for the petitioner prays that leniency may be shown on the question of sentence. 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 in Anilkumar v. Shammy 2002 (3) KLT 852. In the facts and circumstances of the case, I do not find any compelling reasons which can persuade this court to insist on imposition of any deterrent substantive sentence of imprisonment on the petitioner. Leniency can be shown on the question of sentence, but subject to the compulsion of ensuring adequate and just compensation to the victim/complainant.
It is seen that though the cheque is for an amount of Rs. 22,367/- the court below has directed payment of only an amount of Rs. 15,000/- as compensation. The learned Counsel was requested to take specific instructions as to whether any payment had been made during the pendency of the proceedings. This was so directed in an attempt to ascertain why only an amount of Rs. 15,000/- was directed to be paid as compensation. No explanation whatsoever is offered. The learned Counsel for the petitioner only submits that whatever amount is directed to be paid it may be directed to be adjusted towards the liability under Ext. P7 agreement. I am satisfied that the said request can be accepted.
In the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of notice to the respondent.
In the result:
(a) This revision petition 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 super session of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed u/s 357(3) Cr.P.C. to pay an amount of Rs. 25,000/- (Rupees twenty five thousand only) as compensation and in default to undergo S.I. for a period of one month. If realised an amount of Rs. 7,500/- shall be credited towards the expenses incurred in connection with this two tier criminal litigation. The entire balance amount shall be credited towards the liability under Ext.P7 hire purchase agreement.
The petitioner shall appear before the learned Magistrate on or before 30.11.2006 to serve the modified sentence hereby imposed. The sentence shall not be executed till that date. If the petitioner does not so appear, the learned Magistrate shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed.