IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 4 OF 2010 SHRI SUCCOR D'COSTA ... Petitioner Versus M/S SRINIVASA SALES CORPORATION REP. BY NILESH NAIK ... Respondent Ms. Asha Desai, Advocate for the Applicant. Mr. M.S. Joshi, Advocate for Respondent. Coram:- N. A. BRITTO, J. Date:- 29th April, 2010 ORDER : Heard. 2. Challenge in this revision petition is to the judgment dated 11/11/2009 of the learned Additional Sessions Judge confirming the judgment and order dated 13/08/2009 of the learned JMFC, Margao convicting and sentencing the accused under Section 138 of the Negotiable Instruments Act, 1881 to simple imprisonment of 7 days and compensation of Rs.15,000/- to be paid to the complainant. 3. As per the case of the complainant, the accused (petitioner, herein) had purchased a VCD player of Philips make for Rs.15,000/- on 30/07/2004 and towards balance payment of Rs.10,000/- had issued a cheque dated 2/08/2004 for Rs.10,000/- drawn on Andhra Bank, Panaji, which cheque when presented for payment was returned dishonoured due to insufficiency of funds, whereupon the complainant sent a legal notice to the accused dated 23/12/2004, which the accused did not comply. 4. The complainant examined himself in support of his case. On the other hand, the case of the accused was that he was told that the DVD would be sold at the rate of zero finance scheme and accordingly he had issued one cheque of Rs.10,000/- and 10 cheques of Rs.1,000/- each signed with only figures written in words and figures. According to him, he was not liable to pay anything to the complainant. However, the accused did not step in the witness box. 5. The learned trial Court after going through the evidence led by the complainant came to the conclusion that there was a presumption in favour of the complainant in terms of Section 139 of the said Act which the accused had failed to rebut. The learned trial Court also held that there was absolutely no defence worthy of consideration taken by the accused and proceeded to convict and sentence the accused as aforesaid. The learned trial Court also came to the conclusion that the complainant had proved the existence of liability and therefore the burden was on the accused to prove that the cheque was not issued for consideration but was issued for some other purpose. 6. The accused having filed an appeal before the Court of Sessions, the same came to be dismissed by the learned Additional Sessions Judge, observing that the complainant had proved that the accused had drawn a cheque on the account maintained by him towards discharge of his liability. The learned Additional Sessions Judge further observed that it was not disputed that the cheque was presented within 6 months from the date on which it was drawn; that the cheque was returned unpaid only on account of insufficient funds; that the complainant had issued a notice demanding payment within 15 days from the receipt of information of dishonour of the cheque; and that the accused had failed to pay the amount of the cheque within 15 days from the receipt of notice and thus the complainant had proved all the ingredients of Section 138 of the said Act. As regards the submission made on behalf of the accused, that the Bank Manager was not examined, the learned first appellate Court referred to Section 146 of the said Act which raised a presumption of dishonour on the production of Bank's slip and observed that the burden was on the accused to disprove that the said cheque was not dishonoured by the Bank. 7. As far as the facts go, there is no dispute that both the Courts below have given concurrent findings based on the evidence of the complainant, against none led by the accused, that accused had purchased a DVD set from the complainant for Rs.15,000/- and the cheque which was given for the balance amount of Rs.10,000/- had bounced and a notice having been issued, the same was not complied with by the accused. 8. However, in my opinion, the revision needs consideration as far as the sentence imposed on the accused. True, as stated by the learned Counsel on behalf of the complainant, the accused has undergone the sentence of imprisonment imposed upon him i.e. 7 days S.I. The accused appears to be a Government servant. 9. However, the fact of the matter is that prior to 13/08/2009 i.e. date of first judgment, the accused had paid to the complainant substantial amounts. A report was called for by this Court from the learned JMFC and which shows that the complainant had received a sum of Rs.15,000/- as stated by the learned JMFC by her letter dated 23/04/2010. As regards the sums of Rs.3,000/- and Rs.2,000/- mentioned by the learned Magistrate at the foot note of the report, the accused had produced copies of receipts dated 3/10/2005 and 27/01/2006. If the accused had paid a sum of Rs.15,000/- as on the date of sentence i.e. Rs.5,000/- more than the amount which the accused was due and payable on the cheque, there was no question of the accused being sent to any imprisonment. From the said statement of the learned Magistrate, it also appears that the accused was refunded a sum of Rs.8,500/- on 6/05/2009 and Rs.1,000/- remains in the Court, which the accused is entitled to withdraw. It appears that at one stage, the complainant was demanding Rs.14,500/- over and above Rs.10,000/- which was not accepted by the accused. 10. Considering the facts of the case, therefore, while maintaining the conviction, the sentence imposed against the accused is hereby set aside and the accused is hereby directed to pay only a sum of Rs.3,000/- by way of compensation to the complainant in terms of Section 357(3) of the Code. Since the amount of Rs.1,000/- is lying with the Nazir of the JMFC, the accused is directed to pay a sum of Rs.2,000/- only before the learned JMFC, within two weeks from today, failing which the accused shall undergo S.I. of 10 days. The said amount of Rs.3,000/- shall be paid to the complainant. 11. Before parting with the judgment, it may be observed that the learned Magistrate had ordered a part of the salary of the accused to be attached and which continued under attachment for a long time. The case was one of criminal prosecution. The learned Magistrate ought not to have adopted such a course even if the application for attachment was filed by the accused himself. N. A. BRITTO, J. NH