V.K. Ashraf vs Shreyas

Thomas P. Joseph, J.—Admit.

This revision arises from the judgment dated 18.04.2009 in Crl.Appeal No. 829 of 2003 of the learned Additional Sessions Judge, Adhoc-III, Thalassery confirming the conviction and sentence imposed on the petitioner by the learned Judicial First Class Magistrate, Thalassery in C.C. No. 50 of 2003. Petitioner was found guilty for the offences punishable u/s 138 of the NI Act (for short, "the Act"), convicted and sentenced to undergo simple imprisonment for six months and pay fine of Rs. 5,000/- with default clause of imprisonment for three months.

According to the first respondent/complainant, he is a wholesale dealer of textile items and the petitioner used to purchase goods on credit basis. For the amount due to the first respondent, the petitioner issued Ext.P3 cheque dated 27.05.1998 for Rs. 49,559/-. That cheque was presented for encashment but, dishonoured as proved by Ext.P4. Dishonour was intimated to the petitioner and he was called upon to pay the amount as revealed by Exts.P4 to P7. The petitioner did not comply with the said direction. Hence the complaint. In the meantime the petitioner filed O.S. No. 176 of 2001 before the learned Munsiff, Thalassery for recovery of the amount due and on 16.07.2004 learned Munsiff passed a decree allowing the first respondent to recover Rs. 78,179 with future interest @6% per annum on the principal amount and cost.

Learned magistrate found that the cheque was issued by the petitioner for the discharge of a legally enforceable debt/liability, that in spite of dishonour intimation and demand, the petitioner did not pay the amount and consequently found him guilty. The conviction and sentence are confirmed by the learned Additional Sessions judge.

Learned counsel for the petitioner contents that findings of the courts below as regards issue of the cheque is not correct. It is also submitted that the petitioner was not heard by the learned Additional Sessions judge while disposing of the appeal. Learned counsel for the first respondent has supported the judgment of the courts below.

So far as finding regarding the petitioner issuing Ext.P3, cheque is concerned, there is evidence of P.Ws.1 and 2. The courts below found the said evidence acceptable. I find that apart from merely denying the transaction, the petitioner has not adduced any evidence. Learned counsel was not able to point out any infirmity or irregularity, not to say about any illegality in the finding of the courts below as regards the transaction leading to the issuance of Ext.P3, cheque. Conviction therefore is unassailable.

What remains is whether the sentence awarded to the petitioner is excessive? Learned magistrate as aforesaid sentenced the petitioner to undergo simple imprisonment for six months and pay a fine of Rs. 5,000/-. That is confirmed by the learned sessions Judge.

Learned counsel for the first respondent submits that pursuant to the decree in O.S. No. 176 of 2001, the first respondent filed execution petition in the Munsiff Court, Thalassery on 04.11.2004 claiming Rs. 1,15,089 with interest @ 6% per annum from 16.07.2004 till payment on the principle sum of Rs. 49,559/- and cost of Rs. 5,658/-. It is submitted that still, the execution petition is pending and the liability is not discharged.

Though, learned counsel for the petitioner has raised a contention that the petitioner was not heard on the sentence, I am unable to accept that contention. The Supreme Court has held that even when the counsel for the appellant is absent, it is within the power of the appellate court to look into the records and dispose of the appeal, if necessary, getting the assistance of a lawyer. In this case, the appellate court has considered the rival contentions and confirmed the conviction and sentence imposed by the learned magistrate. There is nothing illegal or irregular in that.

Having regard to the nature of the offence involved, I am inclined to think that the sentence could be modified. At the same time, I must ensure that the amount due to the first respondent is paid. Having regard to the relevant circumstances, I am satisfied that simple imprisonment till the rising of the Court will be sufficient sentence. The petitioner has to pay compensation.

Learned counsel for the petitioner has requested six months time for payment of compensation.

Having heard the learned counsel for the first respondent also, I am inclined to grant four months time.

Needless to say that the compensation if paid by the petitioner has to be adjusted in the amount payable as per decree in O.S. No. 176 of 2001.

The revision petition is allowed in part as under:

Conviction of the petitioner u/s 138 of the NI Act entered by the learned Judicial First Class Magistrate, Thalassery in C.C. No. 50 of 2003, confirmed by the learned Additional Sessions Judge, (Adhoc-III), Thalassery in Crl.Appeal No. 829 of 2003 calls for no interference.

Sentence imposed on the petitioner by the learned Judicial First Class Magistrate's Court, Thalassery and confirmed by the learned Addl. Sessions Judge is modified as under:

a. Petitioner shall undergo simple imprisonment till rising of the court.

b. Petitioner shall pay by way of compensation Rs. 1,15,089/- (Rupees one lakh fifteen thousand and eighty nine only) with interest at the rate of 6% p.a. on the principal sum of Rs. 49,559/- (Rupees forty nine thousand five hundred and fifty nine only) from 04.11.2004 till payment and cost of Rs. 5,658/- (Rupees five thousand six hundred and fifty eight only) within four months from this day failing which the petitioner shall undergo simple imprisonment for six months.

c. The petitioner shall surrender before the learned Judicial First Class Magistrate's Court, Thalassery in C.C. No. 50 of 2003 on 04.11.2014 to undergo the substantive sentence awarded.

d. The compensation aforesaid shall be paid by the petitioner to the first respondent by Demand Draft in the name of the first respondent. The first respondent on realisation of the amount shall file statement through his counsel before the learned magistrate while the petitioner surrenders before the learned magistrate as aforesaid.

e. Needless to say that compensation if paid by the petitioner as aforesaid, shall be given credit to the amount payable to the first respondent as per the decree in O.S. No. 176 of 2001.

f. It is directed that the warrant of arrest if any, issued to the petitioner would remain in abeyance until 04.11.2014.