2017 (2) TMI 1019 - HC - Indian Laws

Appellate Court Affirms Conviction & Sentence under Sec.138 of NI Act, Emphasizes Evidence Sufficiency

ANTO PAUL Versus M/s. VITHAYATHIL SALES CORPORATION AND STATE OF KERALA, ERNAKULAM

The appellate court upheld the conviction and sentence under Sec.138 of the Negotiable Instruments Act, modifying the sentence to imprisonment till rising ... Conviction and sentence imposed for the offence under Sec.138 of the Negotiable Instruments Act - Held that:- the revision petitioner has not disclosed any grounds so as to come to the conclusion that those concurrent findings of fact arrived at by both the courts below are tainted by gross perversity or unreasonableness. No crucial or relevant evidentiary aspects have been shut out by both the courts below. Therefore, the impugned finding of conviction is not liable to be interfered with in these revisional proceedings. As regards the question of sentence, the trial court had sentenced the accused to undergo simple imprisonment for one year and the accused shall pay compensation of ₹ 2.4 lakhs, failing which the accused shall suffer simple imprisonment for a further period of six months etc, However, while affirming the conviction, the appellate court has carefully assessed the matter and found that the sentence imposed by the trial court is slightly excessive and had accordingly ordered that the substantive sentence of one year imposed on the petitioner will stand modified and reduced as imprisonment till rising of the court and to pay compensation of ₹ 2.4 lakhs. The cheque amount in question comes to ₹ 1,97,900/-. Ext.P-2 cheque is dated 2.8.2002. The Apex Court has in various judgments held that fine amount or compensation amount as the case may be in prosecution under Sec. 138 of the Negotiable Instruments Act could be the cheque amount + 9% interest from the date of cheque upto date of realisation. Thus it cannot be said that the compensation amount of ₹ 2.4 lakhs is any way excessive or disproportionate. The cheque was issued as early as on 2.8.2002. The revision petition was filed early as on 17.5.2005 and thereafter, the petitioner has not even bothered to move the revision petition. Ordinarily, for this long lapse of time, the complainant can certainly ask for interest. In these circumstances, this Court is of the view that the compensation amount fixed by both the courts below would not require any revisional interference now. Thus neither the conviction nor the sentence deserves to be interfered with. Issues:Conviction and sentence under Sec.138 of the Negotiable Instruments Act, modification of sentence by the appellate court, sufficiency of evidence regarding issuance and execution of the cheque, rebuttal of presumption under Sec.139 of the Negotiable Instruments Act, statutory formalities for initiation of complaint under Sec.138, assessment of sentence by the appellate court, adequacy of compensation amount.Analysis:The petitioner challenged the conviction and sentence under Sec.138 of the Negotiable Instruments Act, imposed by the trial court and modified by the appellate court. The trial court had sentenced the petitioner to one year of simple imprisonment and a compensation of &8377; 2.4 lakhs, with further imprisonment in default. The appellate court modified the sentence to imprisonment till rising of the court and upheld the compensation. The petitioner contested the conviction and sentence, arguing against the sufficiency of evidence and the rebuttal of presumption under Sec.139 of the Act. Both courts found the evidence credible, with the complainant's testimony supporting the issuance and execution of the cheque. The accused failed to rebut the presumption, not responding to the statutory notice, leading the trial court to dismiss his explanations as mere excuses.The appellate court's assessment of the sentence considered the trial court's imposition as slightly excessive, reducing it to imprisonment till rising of the court and maintaining the compensation amount. The courts justified the compensation of &8377; 2.4 lakhs, inclusive of the cheque amount and interest as per precedents. The delay in filing the revision petition and lack of action by the petitioner further supported the compensation amount. The judgment emphasized that the conviction and sentence did not warrant interference, dismissing the revision petition accordingly. The courts affirmed the statutory formalities for initiating the complaint under Sec.138, concluding that the evidence sufficiently proved the vital aspects of the case.In summary, the judgment upheld the conviction and sentence under Sec.138 of the Negotiable Instruments Act, emphasizing the credibility of the evidence and the failure to rebut the presumption. The appellate court's modification of the sentence was deemed appropriate, considering precedents on compensation amounts. The sufficiency of evidence, compliance with statutory formalities, and the petitioner's inaction contributed to the dismissal of the revision petition, affirming the lower courts' findings and conclusions.