The court confirmed the conviction under Section 138, emphasizing the established dishonor of the cheque and appropriate sentencing.

ORDER

The petitioner is the accused in ST No.826/2011 on the files of the Judicial First Class Magistrate Court, Sasthamcotta. He was convicted and sentenced by the learned Magistrate under Section 138 of the Negotiable Instruments Act , to Simple Imprisonment for three months with a further direction to pay compensation of Rs.1,90,000/- under Section 357 (3) Cr.P.C. In the appeal, the learned Additional Sessions Judge II, Kollam, confirmed the conviction but modified the sentence to imprisonment till the rising of the Court and fine Rs.1,90,000/-. It was further directed by the Appellate Court that in default of payment of the aforesaid fine, the petitioner will undergo Simple Imprisonment for three months. The fine amount was also directed to be paid to the complainant, if realised. Aggrieved by the aforesaid verdicts of the courts below, the petitioner is here before this Court with this revision petition.

2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor representing the State of Kerala.

3. The case relates to the dishonour of a cheque dated 05.12.2010 for an amount of Rs.1,90,000/-, which the petitioner is said to have issued to the complainant in discharge of a legally enforceable debt. According to the complainant, the petitioner did not care to make payment of the cheque amount despite the receipt of statutory notice. The learned Magistrate relied on the oral testimonies of PW1 and PW2, and the documents marked as Exts.P1 to P5, to arrive at the conclusion that the petitioner committed the offence under Section 138 of the Negotiable Instruments Act . The Appellate Court made a re-appraisal of the aforesaid evidence and found that the complainant has successfully established the commission of the aforesaid offence by the petitioner. The Appellate Court however found that the prison term awarded as punishment has to be reduced to imprisonment till the rising of the Court. There is absolutely no ground to interfere with the finding of the Appellate Court in the above regard. The courts below have rightly appreciated the evidence and arrived at the finding that the complainant has successfully established the offence alleged against the petitioner. The punishment awarded by the Appellate Court is perfectly reasonable and commensurate with the gravity of the offence involved in this case. That being so, it is not possible for this Court to interfere with the aforesaid finding in exercise of the revisional powers under Section 397 Cr.P.C.

4. The learned counsel for the petitioner submitted that the petitioner had already deposited 30% of the fine amount before the Trial Court, and that a breathing time may be granted to the petitioner to make remittance of the balance amount since he is reeling under severe financial constraints.

5. Having regard to the aforesaid submission of the learned counsel for the petitioner, I deem it appropriate to grant a period of 10 months’ time for the petitioner to surrender before the Trial Court to undergo the sentence of imprisonment till the rising of Court and to make remittance of the balance fine amount as directed by the Appellate Court.

In the result, the revision petition stands allowed in part as follows:

i) The concurrent findings of the courts below, convicting the petitioner for the commission of offence under Section 138 of the Negotiable Instruments Act , are hereby confirmed.

ii) The sentence of imprisonment till the rising of the Court and fine of Rs.1,90,000/- awarded by the Appellate Court are also confirmed, but subject to the leverage that the petitioner will be entitled to surrender before the Trial Court to undergo the aforesaid sentence within a period of 10 months from today. iii) The Trial Court shall keep in abeyance