A holder in due course of a cheque can prosecute under Section 138 of the NI Act, despite ongoing civil suits concerning the same cheque.

ORDER

Dated this the 23rd day of March, 2022 This revision is filed against concurrent findings of guilt of the revision petitioner under Section 138 of the Negotiable Instruments Act , 1881 (for short ‘NI Act’) and conviction and sentence followed thereby.

2. The revision petitioner is the accused in the prosecution. He was found guilty by Judicial First Class Magistrate Court, Taliparamba (for short ‘the trial court’) and was convicted and sentenced to undergo simple imprisonment for six months and to pay Rs.2,50,000/- as compensation to the complainant under Section 357 (3) of the Code of Criminal Procedure , 1973 (for short ‘Cr.P.C’) and also to undergo simple imprisonment for one month as default sentence. When the judgment of the trial court was assailed, Additional Court of Sessions III, Thalassery (for short ‘the appellate court’) has allowed the appeal in part and modified the substantive sentence to simple imprisonment till rising of the court. The direction to pay compensation and default sentence are maintained. Against the judgment of the appellate court confirming the guilt and imposition of sentence, the accused came up in the revision on hand.

3. It is urged by the learned counsel that the case of the defence in the prosecution was that the disputed cheque was given to one Mr.Luckose and not to the complainant. In order to substantiate that aspect, certified copies of plaint, written statement and copy of reply notice dated 10.08.2012 were produced before the trial court and marked in evidence as Exts.D1 to D3. According to him the trial court did not appreciate the documents in its true spirit and accordingly the accused was found guilty and convicted by the judgment assailed.

4. Under Section 142 NI Act, either the payee or holder in due course of the cheque can launch a prosecution. Therefore the factum that one Mr.Luckose has filed the Civil Suit and Sri.Jinson T P has filed complaint will not make any difference. Apart from the above, no other arguments were advanced. The revision petitioner having been failed to point out a jurisdictional error in the judgments assailed, the revision is not liable to be admitted.

5. However, the learned counsel canvassed for grant of some more time as of leniency for paying the compensation taking into account the Covid-19 pandemic and the financial constraints caused by it. The compensation liable to be paid being Rs.2,50,000/-, this Court is inclined to grant three months’ time from this day. The trial court shall not proceed to execute the sentence during the time now stands extended now. The revision petitioner shall surrender before the trial court to serve the substantive sentence of imprisonment till rising of the court and file a memo to evidence payment of compensation to the complainant on or before 22.06.2022. In case of default of of the revision petitioner to do as aforesaid, the trial court shall proceed to execute the sentence forthwith.