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TMI Blog2023 (9) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... ), challenging judgment in S.T.17/2016 dated 30.01.2019 on the files of the Chief Judicial Magistrate Court, Pathanamthitta and also in Crl.A.No.21/2019 dated 30.07.2022 on the files of the Additional District & Sessions Judge-IV, Pathanamthitta. 2. The revision petitioner is the sole accused in the above case. The respondents herein are the original complainant as well as State of Kerala. 3. Heard the learned counsel for the revision petitioner and also the learned Public Prosecutor. 4. I shall refer the parties in this revision petition as 'accused' and 'complainant', for convenience. 5. The brief facts of the case: The accused, who had availed loan of Rs.75,000/- on 22.04.2013 and Rs.72,500/- on 21.10.2013 from the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentenced as under: "20. Resultantly, the following sentences of imprisonment and fine are imposed on the accused. The accused is sentenced U/s. 138 of the NI Act to undergo simple imprisonment for 2 months and to pay fine of Rs.205220/-[Two Lakhs five thousand two hundred and twenty only). In case of default in payment of fine the accused shall undergo simple imprisonment for one month more. The fine amount, if realised, shall be given to PW1 as compensation U/s. 357(1) of the Cr.P.C. If the accused does not pay the fine amount within 60 days from today, PWI is entitled to get interest @ of 9% per annum on the said amount from the date of the judgment to the date of realization. The period of detention, if any, already undergone by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumptions under Sections 118 and 139 of the N.I. Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities. It has been settled in law that the accused can either adduce independent evidence or rely on the evidence tendered by the complainant to rebut the presumptions. See decisions reported in [2010 (2) KLT 682 (SC)], Rangappa v. Mohan; [2019 (1) KLT 598 (SC) : 2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], Bir Singh v. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 receipt dated 21.11.2013 to prove the transaction, issuance of cheque and its dishonour in support of the complainant's case. Thus, it appears that the PW1, being the authorised officer holding the post of Chief Officer cum Executive Director of the complainant Company, had given evidence in support of the prosecution. Therefore, no serious anomaly could be found in the finding of the courts below that PW1 had authority to represent a company. Therefore, this challenge found to be meritless. 15. The second point argued by the learned counsel for the revision petitioner/accused is that the trial court exceeded the limit while imposing penalty. According to the learned counsel for the revision petitioner/accused, the trial court direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when offence under Section 138 of NI Act is found to be committed. 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustainable. However, it is made clear that the courts can impose double the cheque amount as fine or lesser sum, by adding interest thereof, or to compensate the complainant otherwise, by quantifying the amount, but on any contingency the fine amount shall not exceed twice the cheque amount. Therefore, I am inclined to modify the sentence, so as to maintain the same within the statutory limit. 20. In the result, this revision petition is allowed in part. The conviction stands confirmed and the sentence stands modified, whereby the accused/revision petitioner is sentenced to undergo imprisonment for a day till rising of the court and to pay a fine of Rs.2,05,220/- (Rupees two lakh five thousand two hundred and twenty only) and the said amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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