JOSE THOMAS Vs. SUNNY JOSEPH

JUDGEMENT

(1.) The petitioner has been indicted for the offence punishable under Section 138 of the Negotiable Instruments Act in ST 1572/96 on the file of the Court of Judicial Magistrate of the I Class, Palai instituted on the basis of a complaint filed by the first respondent herein. Ext.P1 dishonoured cheque dated January 1996 is for Rs.15,000/-. The cheque was dishonoured as per Ex.P2 bank memo dated February 1996. The trial court as per the impugned judgment rendered on 16.8.1999 had convicted the petitioner for the aforesaid offence and had sentenced to pay fine of Rs.15,000/- and in default thereof to undergo simple imprisonment for a period of three months and that out of the fine amount of Rs.15,000/-, a sum of Rs.13,000/- was directed to be paid to the complainant as compensation in terms of Section 357(1) of the Code of Criminal Procedure. The petitioner (accused) had filed Criminal Appeal No.217/1999 before the appellate court. The appellate court concerned (Court of Addl. Sessions Judge (Spl.), Kottayam) as per the impugned judgment rendered on 27.1.2003 found that the conviction does not suffer from any legal infirmity and had thus confirmed the conviction. However, the petitioner specifically contended that at that relevant time (in 1996), Judicial Magistrate of First Class did not have jurisdiction to impose a fine exceeding Rs.5,000/-, in view of the limitation under Section 29 of the Cr.PC, 1973. It was only as per the subsequent amendment made to the provisions of Section 138 of the NI Act with effect from 6.2.2003 that the provision was made enabling imposition of fine, which could extend to twice the cheque amount. Since the cause of action pertaining to this case was prior to the said amendment, the Judicial Magistrate of First Class did not have jurisdiction at that point of time to impose a fine exceeding Rs.5,000/-. In view of this technicality, the Appellate Sessions Court has modified the sentence by ordering that the petitioner should suffer simple imprisonment for a period of one month and to pay compensation of Rs.17,000/- to the complainant under Section 357(3) of the Cr.PC. These verdicts of the courts below regarding the conviction and sentence imposed on the petitioner are under challenge in the present revision petition.

(2.) The revision petition was filed as early as on 21.5.2003. This Court as per order dated 22.5.2003 had admitted the revision petition and had passed interim order dated 22.5.2003 on Crl.MA No.4796/2003 in this revision suspending execution of the impugned sentence in this case on condition of the petitioner executing a bond for Rs.10,000/- with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate and depositing an amount of Rs.13,000/- before the trial court within one month etc.

(3.) The trial court has now informed the Registry of this Court as per letter dated 3.10.2017 that in compliance with the said interim order dated 22.5.2003 passed by this Court in this revision, the petitioner had executed the requisite bond with two solvent sureties and has also deposited an amount of Rs.13,000/- on 30.6.2003 before the trial court etc. However, it is noted by the Registry that notice sent to R- 1 (complainant) was initially returned back with the endorsement that the respondent is missing. Later, the Registry has endorsed that notice sent to R-1 has been returned unserved and that service of notice on R-1 is not complete. As per endorsement dated 9.12.2016, it is again endorsed by the Registry that notice was sent to R-1 through the Circle Inspector of Police, Pala on 9.12.2016 and that later it was returned unserved stating that the addressee left for Bangalore. Thereafter, the petitioner has not taken any steps, whatsoever, to ensure proper service of notice on R-1. This Court could have dismissed the revision petition for non-prosecution. However, considering the substantive sentence of one month's simple imprisonment that imposed on the petitioner by the appellate court, this Court is inclined to consider the merits of the matter.