ABDUL KHADAR Vs. MALLIK L KAPADIA

JUDGEMENT

(1.) COMPLAINT filed by the respondent against the petitioner under Section 200 Cr.P.C for an offence under Section 138 of Negotiable Instruments Act was registered in C.C.No.289/2007 in the Court of JMFC-III, Mysore. Since the accused/petitioner pleaded not guilty, the case was posted for trial. Complainant deposed as PW-1 and produced 5 documents, which were marked as Exs.P1 to P5. The accused was examined under Section 313 Cr.P.C. Later, he deposed as DW-1 and examined one Wasim Najeeb as DW-2 and marked Exs.D-1 to D-3. Considering the material on record, learned Magistrate found accused guilty of the offence under Section 138 of N.I.Act. Acting under Section 255(2) Cr.P.C, accused was convicted and sentenced to undergo simple imprisonment for 8 months and pay compensation of Rs.1,00,000/- to the complainant under Section 357(3) Cr.P.C. Feeling aggrieved, the accused preferred Criminal Appeal No.221/2008 in the Sessions Court at Mysore. Learned Sessions Judge found the appeal to be devoid of merit and passed an order of dismissal on 16-11-2009. Feeling aggrieved, the accused has filed this criminal revision petition.

(2.) SRI P.N.Hegde, learned Advocate for the accused- petitioner submitted that, petitioner has deposited till date in all Rs.1,75,000/- and that the petitioner would deposit the balance cheque amount and reasonable fine amount as may be determined. Learned counsel sought to set aside the custodial sentence imposed on the petitioner by the learned Magistrate and affirmed by learned Sessions Judge.

(3.) COMPLAINT was lodged based on a cheque marked as Ex.P2, which was returned by the Bank vide Ex.P3 and the demand notice Ex.P4. Keeping in view the credible evidence of PW-1 supported by Exs.P2 to 4, the learned Magistrate is justified in holding the petitioner guilty of offence under Section 138 of N.I.Act. However, keeping in view the nature of proceedings, the learned Magistrate is not justified in sentencing the accused to undergo S.I for eight months and also pay compensation of Rs.1,00,000/- to the complainant. The learned Sessions Judge has not correctly examined the matter with regard to order of sentence is concerned.