DEVI COMPANY Vs. N S S JAYARAJ

JUDGEMENT

(1.) FOR the This revision is directed against the order passed by the Judicial Magistrate No. III, Erode, in C.C. No. 334 of 1993, dated November 25, 1994. The revision petitioner filed a complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act"), against the respondent/accused alleging that the respondent issued a cheque for Rs. 1, 66, 723.50 on January 25, 1993, and that when the cheque was presented in the bank on June 30, 1993, the cheque was dishonoured on the ground "insufficient funds" and that after issuing legal notice, the revision petitioner has filed this complaint. The learned Magistrate on a consideration of oral and documentary evidence, convicted the respondent to pay a fine of Rs. 21, 000. It is further ordered that a sum of Rs. 20, 000 out of Rs. 21, 000 should be paid as compensation to the complainant. In this revision, the revision petitioner contended that the trial court ought to have imposed sentence on the accused commensurate with the cheque amount and that therefore, the above sentence has to be enhanced. It is admitted that the respondent has filed appeal C.C. No. 1 of 1995 on the file of the Additional and District Sessions judge, Erode, against the sentence of fine imposed on him by the court and that the said appeal is pending.

(2.) THE question that arises for consideration in this revision is, whether the sentence of fine imposed on the respondent is liable to be enhanced. Learned counsel for the revision petitioner contended that the trial court ought not to have held that the respondent paid Rs. 20, 000 as per the compromise and that he is liable to pay the balance sum of Rs. 20, 000 and that in the police station a compromise was effected in and by which another partner of the complainant company agreed to receive Rs. 40, 000 for the cheque amount. It is contended by the revision petitioner that it is not open to the trial court to come to the said conclusion when once it is proved that the accused issued cheque for Rs. 1, 66, 723.50. THE trial court has also held in paragraph 9 of the judgment that as per exhibits P-7 to P-11, it is proved that the accused purchased materials for the above amount. Learned counsel further contended that the trial court has given a finding as though the complainant is entitled to Rs. 40, 000 only as per the compromise and that therefore, the findings given by the trial court on the above aspect are not sustainable in law and that as the cheque was issued for more than Rs. 1, 00, 000 the trial court ought to have imposed fine equivalent to the cheque amount.On the other hand, learned counsel for the respondent contended that the trial court on consideration of evidence adduced by the accused has come to the conclusion that the accused is liable to pay Rs. 40, 000 only and that under section 139 of the Act, the accused is entitled to rebut the presumption and that the evidence of D.W. 1 has to be accepted.