SURESH PRAJAPAT Vs. MANOJ

JUDGEMENT

(1.) THIS revision is directed against the judgment dated 10-7-2002 rendered by the Third Addl. Sessions Judge, Ujjain in Cr. Appeal No. 53/2002 arising out of the judgment dated 8-4-2002 passed by the Judicial Magistrate First Class, Ujjain in Cr. Case No. 414/2000 thereby the learned Trial Court convicted the applicant for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'act') and sentenced to undergo R. I. for six months and a fine of Rs. 5,000/ -. In default of payment of fine to suffer additional S. I. for three months and also ordered for payment of Rs. 4,000/- as compensation to the complainant out of the fine amount of Rs. 5,000/-, after its realisation from the applicant. In the impugned judgment in appeal, the learned Lower Appellate Court has maintained the conviction and sentence as imposed by the Trial Court and also awarded additional compensation under Section 357 (3) of the Code of Criminal Procedure of Rs. 64,000/ -. In default of payment of this amount, ordered for further R. I. for six months. Both the sentences were ordered to run consecutively. It is pertinent to note here that the learned Lower Appellate Court in para 18 has wrongly mentioned that the Trial Court has not awarded any compensation as per provision under Section 357 of the Code of Criminal Procedure whereas the Trial Court has passed the specific order as mentioned above in para 17 of its judgment.

(2.) A criminal complaint of the non-applicant No. 1/manoj before the Trial Court was that he advanced Rs. 64,000/- loan on 7-11-98 returnable with interest @ Rs. 2/- per cent per month to the applicant. To this effect, an agreement was also executed duly signed by the witnesses. For repayment of this loan-amount, the applicant issued two post-dated cheques of Rs. 40,000/-and 24,000/- dated 7-11-99 respectively. He also assured for honour of the cheques on presentation in the concerned bank. But the same were dishonoured and returned back by the bank. Therefore, the non-applicant No. 1/manoj sent a legal notice through his Advocate dated 15-11-99 by Registered Post as well as under Certificate of Posting. It is further alleged in the complaint that the applicant deliberately avoided the service of the notice and got written a note on the envelope of registered post that the noticee had gone out of station for a long period whereas the notice sent by Postal Certificate was served upon him.

(3.) SINCE the applicant did not repay the loan-amount, therefore, the complaint was filed under Section 138 of the Act and Section 420 of the Indian Penal Code. The learned Trial Court framed the charge against the applicant only under Section 138 of the Act. The applicant denied the charge and examined himself and one witness Jaisingh. The learned Trial Court held the applicant/accused guilty of the offence under Section 138 of the Act against which, he preferred an appeal and the same has been dismissed by the impugned judgment by the Lower Appellate Court. Therefore, this revision before this Court has been filed by the applicant.