Dr. Kauser Edappagath, J
1. This criminal revision petition has been filed challenging the judgments passed by the Chief Judicial Magistrate Court, Pathanamthitta (for short 'the trial court') in S.T.No.374/2016 dated 30.7.2018 and the Additional District and Sessions Court-II, Pathanamthitta (for short 'the appellate court') in Crl.A.No.70/2018 dated 17.8.2021.
2. The revision petitioner is the accused in a prosecution initiated against him under Section 138 of the Negotiable Instruments Act (for short 'the NI Act'). The 1st respondent is the complainant. The case of the 1st respondent is that the revision petitioner borrowed a sum of ₹3,50,000/- from him and towards the discharge of the said debt, Ext.P1 cheque was issued. On presentation, it was dishonoured for want of sufficient funds. Though statutory notice under Section 138(b) of the NI Act was issued and it was received by the revision petitioner, there was no compliance. It was in these circumstances, the private complaint was filed.
3. Before the trial court, the complainant was examined as PW1 and Exts. P1 to P5 were marked. No evidence was adduced by the revision petitioner/accused. After trial, the trial court found that the revision petitioner has committed offence punishable under Section 138 of the NI Act and he was convicted and sentenced to undergo simple imprisonment for two months and to pay a fine of ₹7,00,000/-, in default, to suffer simple imprisonment for thirty days. The fine amount, if realised, was ordered to be paid to the 1st respondent as compensation under Section 357(1) of the Cr.P.C. The revision petitioner challenged the said judgment before the appellate court in Crl.A.No.70/2018. The appellate court dismissed the appeal confirming the conviction and sentence. This criminal revision petition has been filed challenging both the judgments of the trial court and the appellate court.
4. I have heard both sides.
5. I went through the records. The complainant was examined as PW1. He gave evidence in tune with the averments in the complaint. His evidence would prove the transaction and execution of the cheque. No evidence has been adduced by the revision petitioner to rebut the presumption available under Section 139 of the NI Act. There is concurrent finding of fact on the execution of cheque. I find no reason to upset the said concurrent finding of fact entered into by the trial court as well as the appellate court.
6. The learned counsel for the revision petitioner submits that the sentence may be modified and a substantive sentence may be ordered till rising of court. I find some force in the argument. Having heard both sides, I am of the view that the sentence can be modified. Hence this criminal revision petition is disposed of as follows:
The conviction of the revision petitioner/accused is confirmed. The sentence imposed by the trial court as confirmed by the appellate court is modified as follows:
(a) The revision petitioner/accused shall undergo simple imprisonment till rising of court.
(b) The revision petitioner shall pay compensation of ₹7,00,000/- to the 1st respondent under Section 357(3) of Cr.P.C. (Section 395(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023), in default, the revision petitioner shall suffer simple imprisonment for a period of two months.
(c) The petitioner is granted three months' time to appear before the trial court to suffer the sentence of till rising of the court and deposit the compensation amount.
