JAMES Vs. MOHANACHANDRAN NAIR AND ORS.

JUDGEMENT

(1.) THIS revision petition is directed against the conviction concurrently entered against the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act. The revision petitioner was the accused in C.C. No. 641 of 2003 and the first respondent herein was the complainant therein. The case of the first respondent was that the revision petitioner borrowed an amount of Rs. 4,00,000/ - for meeting an unavoidable urgent personal need on 4.10.2001 and thereafter, in discharge of the said legally enforceable debt issued Ext. P1 cheque dated 4.12.2001 from his account maintained at the South Indian Bank, Sasthamcotta Branch. When the said cheque presented for encashment it was bounced due to paucity of funds. Thereupon, statutory notice was issued within the prescribed time limit intimating the revision petitioner of the factum of dishonour of the cheque and calling upon him to pay the amount due. It is the failure on the part of the revision petitioner to effect payment of the amount covered by the cheque within the statutorily prescribed period that constrained the first respondent to file the complaint which was taken on file and registered as C.C. No. 641 of 2003, after complying with the statutory procedures. Evidently, to bring home the charge against the revision petitioner the first respondent got himself examined as P.W. 1 and got marked Exts. P1 to P4. On closure of the evidence of the complainant the revision petitioner was examined under Section 313 Cr.P.C. and he denied all the incriminating circumstances put to him. However, he did not adduce any defence evidence either oral or documentary. After a careful evaluation of the evidence the trial court found that the first respondent herein/the complainant has succeeded in establishing that the cheque in question was issued in discharge of a legally enforceable debt and it was dishonoured on a ground referable to the provisions under Section 138 of N.I. Act. After considering the evidence of the complainant consisting of his oral testimony as P.W. 1 and documentary evidence in Exts. P1 to P4 the trial court found that the revision petitioner has committed the offence under Section 138 of the N.I. Act. Consequently, he was convicted thereunder and sentenced to undergo simple imprisonment for six months and he was also directed to pay a compensation of Rs. 4,00,000/ - to the complainant under Section 357(3), Cr.P.C. and in default of payment of compensation to undergo simple imprisonment for a further period of 15 days. Feeling aggrieved by the same the revision petitioner filed Crl. A. No. 81 of 2007. The revision petitioner has taken up a contention before the appellate court that the cheque in question was issued to discharge the liability of 'Alfa Productions' which is a partnership firm. The appellate court considered the entire evidence and found that no evidence whatsoever was produced by the revision petitioner herein before the trial court or even at the appellate stage, in accordance with law, to establish that the cheque in question was issued to discharge a legally enforceable debt of 'Alfa Productions'. Evidently, the precise case of the first respondent/complainant was that it was issued in discharge of the personal liability of the revision petitioner. After a careful consideration of the evidence on record the appellate court found that the appreciation of evidence by the trial court could not be said to be perverse or against the weight of the evidence warranting appellate interference and virtually, the conclusions and findings arrived at by the trial court are perfectly in tune with the evidence on record. After such consideration the appellate court found no ground to interfere with the conviction as also the sentence. In the said circumstances, the conviction entered against and the sentence imposed on, the revision petitioner were confirmed. The captioned revision petition has been filed in the said circumstances against the judgment in Crl. A. No. 81 of 2007.

(2.) I have heard the learned counsel for the revision petitioner and the learned counsel for the first respondent.

(3.) EVIDENTLY , upon convicting the revision petitioner under Section 138 of the N.I. Act the trial court sentenced him to undergo simple imprisonment for six months. The petitioner was also directed to pay compensation of Rs. 4,00,000/ - to the complainant and in default of payment of the amount of compensation he was directed to undergo simple imprisonment for a further period of 15 days. The appellate court found that the said sentence imposed on the revision petitioner is the condign punishment for the conviction under Section 138 of N.I. Act. However, I am of the view that in the light of the decision of the Hon'ble Apex Court in Damodar S. Prabhu v. Sayed Babalal ( : AIR 2010 SC 1907) in a case of dishonour of a cheque the pecuniary aspect has to be given preference over the punitive aspect and when it is evident that the revision petitioner herein was directed to pay an amount which is equal to the amount covered by the cheque in question a substantive sentence of imprisonment for six months is excessive. The intention of the legislature, as per the Hon'ble Apex Court, in enacting the provision was to make the drawer of the cheque to pay the amount by giving an opportunity and not to send him to jail. I am of the view that, in the circumstances, while confirming the conviction of the revision petitioner under Section 138 of the N.I. Act it would only be in the interest of justice to modify the sentence and it is accordingly, modified to imprisonment till the rising of the court. It is ordered accordingly. Since the direction to pay the compensation of Rs. 4,00,000/ - was passed by the courts below taking into account the fact that the amount directed to be paid is the amount covered by the cheque I do not find any reason to interfere with the same. In the said circumstances, while modifying the substantive sentence the direction to the revision petitioner to pay an amount of Rs. 4,00,000/ - as compensation to the first respondent is confirmed and the revision petitioner is directed to pay Rs. 4,00,000/ - as compensation to the first respondent under Section 357(3) Cr.P.C. in default of payment of the said amount the revision petitioner shall undergo simple imprisonment for one month. When this Court was about to dismiss this matter upholding the conviction but modifying the sentence the learned counsel for the revision petitioner sought for some reasonable time for the revision petitioner to effect payment of compensation. After hearing the learned counsel for the revision petitioner and taking into account the fact that the amount of compensation is Rs. 4,00,000/ - I am of the view that some reasonable time can be granted. In the said circumstances, the learned Magistrate is directed to keep in abeyance all proceedings for effecting recovery of compensation for a period of eight months to enable the revision petitioner to pay the amount of compensation. In the meanwhile, the revision petitioner shall appear before the trial court to undergo the sentence of imprisonment till the rising of the court on 25.7.2015. Needless to say that in case of failure on the part of the revision petitioner to pay the amount of compensation within the above stipulated time and/or to appear before the trial court to undergo the imprisonment till the rising of the court the trial court shall take appropriate steps, in accordance with law.