SAJI MATHEW Vs. JOSE JOSEPH AND OTHERS

JUDGEMENT

(1.) The petitioner is the accused in Summary Trial Case, S. T. No. 1056/2011 on the file of the Judicial First Class Magistrate's Court-I, Pala, for offence punishable under Section 138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 1st respondent herein (complainant). The trial court as per the impugned judgment rendered on 12.12.2014 had convicted the petitioner and had sentenced him to undergo simple imprisonment for 3 months and to pay compensation of Rs. 5 lakh (which is the cheque amount) to the complainant under Section 357(3) of the Cr. P. C and in default thereof, to undergo simple imprisonment for 4 months. Aggrieved thereby, the petitioner had preferred Crl. Appeal No. 3/ 2015 before the appellate Sessions Court concerned (Court of Addl. Sessions Judge-IV, Kottayam). The appellate court as per the impugned appellate judgment dated 9.12.2016 had upheld the conviction, but reduced the substantive sentence to imprisonment till rising of the court and to pay fine of Rs. 5 lakhs, in case of payment of which , the same was directed to be paid as compensation to the complainant under Section 357(1)(b) of the Cr. P.C., with the default sentence clause of 3 months' simple imprisonment. It is aggrieved by the said findings of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Section 397 read with Section 401 of the Cr. P.C.

(2.) Heard Sri. Baby Thomas, learned counsel appearing for the revision petitioner (accused), Sri. Mathew John, learned counsel appearing for R-1 (complainant) and Sri. Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.

(3.) The brief of the case of the complainant is to the effect that the accused had borrowed amount of Rs. 5 lakhs from the complainant and in discharge of the liability, the accused had issued instant Ext. P-1 cheque dated 11.1.2011 for Rs. 5 lakhs drawn from his bank account and payable in favour of the complainant, which when presented, resulted in dishonour, as per Ext. P-2 bank memo dated 25.4.2011 and Ext. P-3 bank memo dated 30.4.2011. Thereupon, the complainant caused to send Ext. P-4 statutory demand notice under Section 138 proviso (b) of the N. I. Act calling upon the accused to pay off the amount covered by the said cheque within a period of 15 days from the date of receipt of the notice. The said notice sent by registered post was duly served on the accused as per Ext. P-5 postal receipt and Ext. P-6 postal acknowledgment card. The accused had not responded to the said notice and since the amount was not paid, the complainant after adhering the requisite formalities, has instituted the above complaint, which led to the conduct of the trial.