SOOPY A. Vs. STATE OF KERALA

JUDGEMENT

(1.) A cheque for 26,800/- issued by the revision petitioner in favour of the second respondent herein in discharge of a debt due in a chitty transaction was dishonoured due to insufficiency of funds. When he failed to make payment on demand, the company initiated prosecution under Section 138 of the Negotiable Instruments act before the Judicial First Class Magistrate court II, Mananthavady. The revision petitioner pleaded not guilty to the accusations during trial. The complainant examined one witness, and proved Exts. P1 to P6 documents. The accused did not adduce any evidence in defence to prove or to probabilise his case that the cheque does not have consideration, or that no amount is due from him. However he would practically admit the cheque, because it was handed over by him as security in the chitty transaction. It is well settled that even a cheque handed over as security to ensure payment of a debt can well be enforced under the law, even under Section 138 of the Negotiable Instruments Act. On trial the learned Magistrate found him guilty. On conviction he was sentenced to undergo imprisonment till rising of the court, and was also directed to pay a compensation of 26,800/-

(2.) Aggrieved by the conviction and sentence, the accused approached the court of Session, Wayanad with Crl.A. 234/2008. In appeal the learned Sessions Judge concurred with the findings of the trial court, and strangely enough enhanced the sentence. Instead of making modification in favour of the accused, the learned Sessions Judge enhanced the sentence. Accordingly, the minimum sentence imposed by the court below was enhanced to simple imprisonment for one month. The direction to pay compensation was set aside, and instead a fine sentence of 26,800/- was imposed. Now the accused is really aggrieved.

(3.) Notice on admission was given to the second respondent. But the company remained absent in this proceeding. On hearing the learned counsel for the revision petitioner, I find no ground to admit the revision to files. However the sentence illegally imposed by the appellate court will have to be set aside, and the minimum sentence imposed by the trial court will have to be restored. The case on facts stands well proved by PW1, that the Ext. P 2 cheque was issued by the revision petitioner in discharge of the amount due in a chitti transaction. He has also proved compliance of all statutory requirements including statutory notice. The evidence given on facts by PW1, proving the transaction and execution of cheque stands not discredited. Thus I find no reason for interference in the conviction made by the courts below under Section 138 of the Negotiable