HON’BLE SRI JUSTICE K.G. SHANKAR CRIMINAL REVISION CASE No.87 of 2006 Date: February 24, 2011 Between: Alluri Ram Prasad … Petitioner/ Appellant/ Accused And 1. Venkataraya Chit Funds Pvt. Ltd., Tanuku, rep. by its Director Dr. MullapudiHarichandra Prasad, its branch at Eluru, rep. by Special G.P.A., Branch in-charge P.Janardhan Sastry & another. … Respondents/ Respondents * * * HON’BLE SRI JUSTICE K.G. SHANKAR CRIMINAL REVISION CASE No.87 of 2006 JUDGMENT: The sole accused before the Judicial Magistrate of the First Class, Special Mobile Court, Eluru, in C.C. No.95 of 2005 allegedly committed the offence under Section 138 read with Section 142 of Negotiable Instruments Act. 2. The complainant is a chit fund company. The accused, who was a subscriber of a chit, would appear to have committed default in payment of instalments. He later executed Ex.P-4 cheque for a sum of Rs.82,490/- on 25.10.2002 to discharge the amount due from him to the complainant in full. When the cheque was presented, the cheque bounced as can be seen from Ex.P-5 endorsement. Holding that a case under Section 138 read with Section 142 of Negotiable Instruments Act was made out, the learned trial Judge found the sole accused guilty of the offence under Section 138 of Negotiable Instruments Act and sentenced him to suffer simple imprisonment for a period of six months and also a fine of Rs.2,000/- with appropriate default sentence. Aggrieved by the same, the sole accused preferred Criminal Appeal No.204 of 2005 before the Principal Sessions Court, Eluru. The learned Principal Sessions Judge dismissed the appeal and confirmed the conviction as well as the sentence recorded by the trial court. Aggrieved by the same, the sole accused preferred the present revision. 3. The de facto complainant who is the chit fund company examined three witnesses including its power of attorney holder as P.W.1. The accused did not choose to examine anyone in support of his contention. 4. Admittedly, the accused was the subscriber of a chit. Though not in unequivocal terms, the accused indirectly admitted about the amounts due from him to the de facto complainant-chit fund company. It is needless to point out that the accused admitted that he issued Ex.P-4 cheque and that the same stood bounced vide Ex.P-5 endorsement. 5. The basic controversy is whether the accused issued the cheque towards any subsisting debt. Inter alia, Sri I.V.N. Raju, learned counsel for the accused contended that the cheque was not issued in connection with a subsisting debt. He submitted that the de facto complainant filed O.S. No.528 of 2002 on the file of the Junior Civil Judge, Kovvur for recovery of the monies due from the accused and that the suit has not been decreed so far. He contended that so long as the suit has not been decreed, it cannot be said that the debt was subsisting. I am not able to agree with this contention of the learned counsel for the accused. It is not as though for a case under Section 138 of Negotiable Instruments Act, filing of a civil suit and obtaining a decree in a civil case is a pre-requisite. The creditor can proceed against the debtor either under the general civil law or under the provisions of Section 138 read with Section 142 of Negotiable Instruments Act. The de facto complainant would appear to have adopted both the courses in this case. The conviction of the accused would not discharge the debt due from him to the de facto complainant. Consequently, the de facto complainant laid O.S. No.528 of 2002. The filing of O.S. No.528 of 2002 and its pendency therefore do not show that the debt was not subsisting. 6. Admittedly, the accused was a member of the chit, admittedly he fell in arrears of money and admittedly after calculating the same the accused issued Ex.P-4 cheque for a sum of Rs.82,490/-. Thus, evidently Ex.P-4 was issued in connection with a subsisting legally enforceable debt. As the cheque stood bounced, the trial court and the appellate court were perfectly justified in finding the accused guilty of the offence under Section 138 read with Section 142 of Negotiable Instruments Act. 7. Learned counsel for the accused also contended about the quantum of punishment to be imposed against the accused. Smt. K. Radhika, learned counsel for the de facto complainant submitted that the debt has not been discharged so far by the accused. She however admitted that certain amounts were paid by the accused to the de facto complainant-chit fund company and that the deposits, however, were adjusted towards other debts due from the accused to the de facto complainant. 8. Thus, this is a case where after the institution of the revision, the accused would appear to have made some payments to the de facto complainant. It is a fact in favour of the accused. At the same time, as already pointed out, the guilt of the accused has been clearly established. In view of the fact that the accused had paid monies subsequent to the filing of the revision and that the same was appropriated by the de facto complainant towards another debt, I consider it appropriate that the ends of justice would be met if the sentence of imprisonment recorded at six months by the trial court and confirmed by the appellate court is reduced to simple imprisonment for a period of three months, maintaining the fine imposed by the trial court and confirmed by the appellate court at the same time. 9. Learned counsel for the de facto complainant, however, now raised a contention that the amount paid by the accused was adjusted towards the amount due from the accused to the de facto complainant in connection with Ex.P-4 cheque. She generously conceded that the imprisonment of the accused may therefore be reduced to the imprisonment that the accused has already undergone. 10. It would appear that the accused had been in jail for about 15 (fifteen) days. In view of the fact that the amount covered by Ex.P-4 cheque was paid by the accused to the de facto complainant subsequent to the filing of this revision, the conviction recorded by the trial court against the accused is confirmed, but the sentence of simple imprisonment at six months recorded by the trial court as confirmed by the appellate court is reduced to that of the imprisonment already undergone by the accused. The fine amount as recorded by the trial court and confirmed by the appellate court, however, is maintained with appropriate default sentence. 11. The criminal revision is ordered accordingly. ___________________ K.G. SHANKAR, J Date: February 24, 2011. BSB