ORDER :

Crl.R.P. No.1474 of 2017 is at the instance of the accused in C.C.No.36 of 2014 on the file of Judicial First Class Magistrate-VII, Ernakulam, and Crl.R.P.No.200 of 2018 is at the instance of the complainant in that case. The accused is assailing the judgment of conviction and sentence by the appellate court under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the NI Act’), and the complainant is assailing the very same judgment, for inadequacy of the sentence awarded.

2. For easy reference, parties shall be referred according to their status in C.C.No.36 of 2014.

The complainant filed C.C.No.36 of 2014 under Section 138 of the NI Act against the accused, the 1st accused the partnership firm, and the 2nd accused its managing partner. The case of the complainant is that while working as the Branch Manager in Associated Traders and Engineers Private Limited, ERG Road, Ernakulam, he had acquaintance with the 2nd accused, who was the managing partner of the 1st accused partnership firm-AAREMSKY Sports and Fitness, functioning in the very same building. The 2nd accused borrowed an amount of Rs.2,50,000/- from the complainant on 09.09.2010, agreeing to pay monthly interest at the rate of 15% per annum. On 06.08.2011, he borrowed Rs.1,50,000/- from the complainant, by way of a cheque drawn from his account in Syndicate Bank, Shanmugham Road Branch, Ernakulam. Again, on 08.11.2011, he borrowed Rs.1,00,000/- from the complainant by way of a cheque. Thus he received Rs.5,00,000/- in total from the complainant. He was not regular in paying the interest, and at last when the complainant demanded back the amount, after adjusting Rs.66,700/- paid towards interest, he issued Ext.P1 cheque for an amount of Rs.6,00,000/- assuring him that he would get the amount on presentation before the Bank. Accordingly, the complainant presented the cheque, but it was dishonoured for the reason “Funds insufficient”. He sent lawyer notice to accused Nos.1 and 2, as envisaged under Section 138 (b) of the NI Act. Though the notice was received, the amount was not repaid, and hence the complaint.

3. On appearance of the accused before the trial court, the substance of accusation was read over and explained, to which they pleaded not guilty. Thereupon the complainant examined PWs 1 and 2 and marked Exts.P1 to P7 to prove his case. On closure of the evidence of the complainant, the accused were questioned under Section 313 of Cr.P.C. They denied the incriminating circumstances brought on record. DW1 was examined and Exts.D1 to D5 were marked from defence side.

4. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found the accused guilty under Section 138 of the NI Act and they were convicted thereunder. Since the 1st accused was a partnership firm, it was sentenced to pay fine of Rs.60,000/-, and the 2nd accused, its managing partner was sentenced to undergo simple imprisonment for three months and compensation of Rs.6,10,000/- under Section 357(3) of Cr.P.C., with a default sentence of simple imprisonment for a further period of two months.

5. Aggrieved by the conviction and sentence, accused Nos.1 and 2 preferred Crl.Appeal No.337 of 2015. The appellate court, re-appreciated the facts and evidence, but found nothing to interfere with the conviction of the accused under Section 138 of the NI Act and so, it was upheld. The sentence of the 1st accused was confirmed, but the sentence of the 2nd accused was modified and reduced to simple imprisonment till rising of court and fine of Rs.6,10,000/-, with a default sentence of simple imprisonment for one month. There was further direction that if the fine amount is paid or realised, it shall be given to the complainant as compensation under Section 357(1)(b) of Cr.P.C.

6. Impugning the conviction and sentence imposed by the appellate court, accused Nos.1 and 2 preferred Crl.R.P.No.1474 of 2017, and impugning the very same judgment, the