CHANDRASEKHAR Vs. K. JAYARAMA

JUDGEMENT

(1.) THIS criminal revision petition is filed under Section 397 r/w 401 of Cr.P.C. challenging the judgment of conviction and sentence of the petitioner by order dated: 10.2.2012 in C.C. No. 2949/2008 on the file of II Addl. Civil Judge & JMFC, Bhadravathi and the judgment dated 6.10.2012 in Crl.A. No. 58/2012 on the file of Fast Track Court -Bhadravathi, whereby the judgment of conviction of the petitioner under Section 138 of N.I. Act passed by the Magistrate has been confirmed and the appeal came to be dismissed. The revision petitioner was the accused before the Magistrate and the respondent was the complainant. The accused borrowed a sum of Rs. 2.00 lakhs from the complainant for his personal needs. In order to discharge the loan, the accused had issued a cheque dated 24.11.2010 drawn on Corporation Bank, Jannapura Branch, Bhadravathi for a sum of Rs. 2.00 lakhs. The complainant presented the cheque for collection through his banker Syndicate Bank, B.H. Road, Bhadravathi on the same day. But it was returned with an endorsement "funds insufficient". The accused was made aware of the dishonour of the cheque by issuance of notice dated 27.11.2008 by the complainant which was served upon the accused on 4.12.2008. Even after the receipt of notice, the accused neither paid the amount nor gave reply. So complaint came to be filed against the accused for the offence punishable under Section 138 of N.I. Act. The accused having pleaded not guilty, the complainant in order to prove his case, examined himself as PW -1 and relied upon seven documents marked as Ex -P1 to 7. The accused on the other hand got himself examined as DW -1 and one Dharmalingappa as DW -2. The learned Magistrate upon hearing both the learned counsel for the complainant and the accused and on appreciation of the evidence has found the accused guilty for having committed an offence under Section 138 of N.I. Act and thereby by his judgment dated 10.2.2012 convicted him for the offence punishable under Section 138 of N.I. Act and sentenced him to undergo simple imprisonment for a period of one year and pay fine of Rs. 5,000/ - and in default to pay fine, to undergo simple imprisonment for further period of two months. The learned Magistrate has also ordered for payment of compensation of Rs. 1,55,000/ - to the complainant. The accused preferred Crl.A. No. 58/2012 aggrieved by the judgment of conviction and sentence. The learned Sessions Judge on re -appreciation of the evidence has also confirmed the judgment of conviction and sentence of the accused under Section 138 of N.I. Act. While awarding the compensation, the Sessions Judge has taken into account the payment made by the accused after disposal of the matter by the Magistrate and thereby the order as to the payment of compensation has been modified by the learned Sessions Judge and directed the accused to pay compensation of Rs. 1,25,000/ -. Aggrieved by the order passed by both the Courts below, this revision petition is filed.

(2.) DURING the course of arguments, learned counsel for the respondent -complainant has fairly submitted that after filing of the case, till this day, the accused has paid a sum of Rs. 75,000/ - to the complainant. In other words, payment by the accused presupposes that cheque was issued by him towards discharge of his liability. On presentation, cheque came to be dishonoured. Notice came to be issued to the accused and when he did not respond to the notice, a complaint came to be filed. To substantiate these facts, the complainant has produced cheque as per Ex -P1, bank endorsement having dishonoured cheque as per Ex -P1, copy of the legal notice as per Ex -P3, the acknowledgment for having sent and received the notice by the accused as per Exs -P4 to P6. Therefore, there cannot be any defence for the accused. Towards cheque for Rs. 2.00 lakhs, the accused has paid a sum of Rs. 75,000/ -. He is due to pay Rs. 1,25,000/ -. Of -course, he has committed an offence under Section 138 of N.I. Act and he has been sentenced to undergo simple imprisonment for one year and to pay fine of Rs. 5,000/ - and in default to pay fine, to undergo simple imprisonment for further period of two months both by the Magistrate as well as by the Sessions Judge. When he has been ordered to pay compensation amounting to Rs. 1,25,000/ - i.e., the amount due from the accused, the punishment for a period of one year was uncalled for. Since the cheque was issued long back in the year 2008, the complainant can be compensated by awarding compensation of Rs. 10,000/ - over and above the compensation that has been ordered by the Magistrate and the Sessions Judge, Though no grounds have been made out to set aside the conviction of the accused under Section 138 of N.I. Act, the facts and circumstances of the case warrant that the order as to the sentence has to be modified. Hence, I pass the following order: -