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Judgment
P. Ubaid, J.—A cheque for 21,573/- issued by the revision petitioner in favour of the 1st respondent society in discharge of a debt incurred by him as guarantor in a loan transaction was bounced due to insufficiency of funds. When he failed to make payment on demand, the society initiated prosecution under Section 138 of the Negotiable Instruments Act before the Judicial First Class Magistrate Court-II, Thiruvananthapuram. He entered appearance in the trial court and made contest that the society could not have proceeded against him before proceeding against the principal debtor for realisation of the amount, and that the cheque issued by him as security in such a situation is unenforceable under the law.
The complainant examined PW 1 and proved Exts. P1 to P9 documents including the cheque in question and also the loan agreement to which the revision petitioner is a party as guarantor. Finding that the case of the complainant is well acceptable and that the cheque in question is well enforceable under the law, the trial court found the revision petitioner guilty. On conviction, he was sentenced to undergo simple imprisonment for two months, and was also directed to pay a compensation of 21,573/- with interest at the rate of 9% per annum under Section 357(3) of Cr.P.C.
Aggrieved by the conviction and sentence, the revision petitioner approached the Court of Session, Thiruvananthapuram with Crl. A No. 320 of 2012. In appeal, the learned Additional Sessions Judge concurred with the findings of the trial court, and accordingly confirmed the conviction. However, the sentence was modified and reduced to imprisonment till rising of the court.
On hearing the learned counsel for the revision petitioner on admission, I find no reason or ground to admit the revision to files. I find that by granting some reasonable time to the revision petitioner to make payment of the compensation, this revision petition can be disposed of.
PW 1 examined by the complainant has given definite evidence proving the loan transaction in which the revision petitioner incurred debt as a guarantor. In fact he would admit the transaction including the cheque, subject to his contention that it was issued only as security in his capacity as guarantor. The transaction is further proved by Ext. P9 agreement to which he is a party. Bouncing of Ext. P2 cheque stands proved by Ext. P4 memo. Ext. P5 statutory notice was sent in time by the complainant, and the complaint was also filed in time.
The learned counsel for the revision petitioner cited a decision of the Madras High Court in Sakthi Finance Limited Vs. K. Selvaraj and submitted that the cheque in question is not enforceable under the law. I find on a reading of the judgment that the reported case is a case where the cheque in question was not intended to be used for realisation of any amount. But here is a case where the cheque in question was handed over voluntarily by the revision petitioner as security in his capacity as guarantor, and he issued the cheque with the object of securing the debt incurred by the principal debtor. This is not a case where the cheque in question was handed over, or issued, without any intention of it being used to enforce liability. No doubt, the cheque in question is well enforceable under the law because it was given to ensure payment of a debt, on behalf of the principal debtor. The revision petitioner cannot be heard to contend that before proceeding against the guarantor, the Society will have to proceed against the principal debtor. I find that the complainant has well proved the case on facts with necessary elements and ingredients including compliance of all statutory requirements. I find no illegality or irregularity or impropriety in the conviction or in the sentence made by the courts below.
The amount of compensation granted by the courts below is the cheque amount, with 9% interest per annum. In the present circumstances, I feel that a slight modification can be made and the rate of interest can be reduced to 6% per annum. The learned counsel for the revision petitioner made a request to grant three months'' time to make payment of the compensation. The amount involved is 21,573/-, but inclusive of 6% interest, it will go up to 40,000/-. Considering the amount involved, I feel that time for three months can be granted as requested by the revision petitioner.
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 minimum sentence till rising of the court imposed by the courts below is also confirmed.
(c) The direction made by the courts below to make payment of the compensation is confirmed as regards the amount granted, but as regards the interest portion, it will stand modified, that the interest payable shall be only at the rate of 6% per annum.
(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 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.