Y. Sasidharan vs B. Viswan

P. Ubaid, J.—A cheque for 60,000/- issued by the revision petitioner herein in favour of the first respondent (complainant) in discharge of a debt incurred by him in a borrowal transaction was bounced due to insufficiency of funds. When the revision petitioner failed to make payment on demand, the complainant brought prosecution under Section 138 of the Negotiable Instruments Act before the Judicial First Class Magistrate Court-I, Neyyattinkara.

The revision petitioner entered appearance in the trial court and pleaded not guilty to the accusations. During trial the complainant examined himself as PW1 and marked Exts. P1 to P5 documents. The accused examined himself and another witness, and also marked Exts. D1 and D2 in defence. The defence evidence adduced by the accused did not inspire confidence in the mind of the trial court. Accepting the evidence adduced by the complainant, the trial court found the revision petitioner guilty under Section 138 of the N.I. Act. On conviction he was sentenced to undergo simple imprisonment for six months, and to pay a fine of 87,000/- under Section 357(3) Cr.P.C.

Aggrieved by the conviction and sentence, the accused approached the Court of Session, Neyyattinkara with Crl.A. No. 159/2013. In appeal the learned Additional Sessions Judge confirmed the conviction and sentence, and accordingly dismissed the appeal. Now the accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence.

Notice on admission was given to the 1st respondent. On hearing both sides, and on a perusal of the case records, I find no ground or reason to admit the revision to files. I find that with some modification in sentence this revision can be disposed of. The amount of fine will have to be converted as compensation, and the jail sentence can be reduced to the minimum possible under the law, when the concern of the complainant is only to get the amount due. The cheque amount is only 60,000/-, and a direction to pay that much amount as compensation will do justice to the complainant. The complainant has given definite evidence proving the alleged transaction of borrowal and also proving execution of Ext. P1 cheque. The reason for dishonour is also proved by complainant, and also Ext. P2 memo. 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. He has no explanation why he did not send reply to Ext. P3 statutory notice sent by the complainant in time. The complaint was also filed well within time by the complainant. Thus I find that the complainant has well proved the case on facts, with all necessary elements and ingredients, including compliance of statutory requirements. I find no scope for interference in the conviction on the ground any illegality, or irregularity or impropriety.

Of course, as regards sentence some modification is felt necessary. When the amount is 87,000/-, the fine sentence will have to be set aside, and a direction for compensation can be made. I find that the real concern of the complainant is to get the amount due, and not to send the accused in jail. In such a situation, when 87,000/- inclusive of the cheque amount is given as compensation, the jail sentence can be reduced to the minimum possible under the law.

The learned counsel for the revision petitioner made a request to grant some reasonable time to make payment of compensation. Considering the facts and circumstances, I feel that three months time can be reasonably granted. In the result, this 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 Negotiable Instruments Act is confirmed.

b) The jail sentence imposed by the courts below will stand modified and reduced to imprisonment till rising of the court.

c) The fine sentence imposed by the courts below will stand set aside, and instead, the revision petitioner is directed under Section 357(4) Cr.P.C. to make payment of a compensation of 87,000/- to the complainant.

d) The revision petitioner will surrender before the trial court within three months from this date to serve out the sentence, and to make payment of the compensation voluntarily, 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.