Accused in C.C. No.190 of 2011 on the file of the Judicial First Class Magistrate Court-IV, Kozhikode is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the 1st respondent under Sec.138 of the Negotiable Instrument Act (for short, the NI Act). 2. The case of the complainant in the complaint was that the accused purchased articles from their Kochi and Kozhikode branches and issued Ext.P1 cheque in discharge of that liability which when presented was dishonoured for the reason funds insufficient and in spite of notice issued, he had not paid the amount. So he had committed the offence punishable under Sec.138 of the NI Act.
3. When the revision petitioner appeared before the Court below, the particulars offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, PWs.1 and 2 were examined and Exts.P1 to P7 were marked on the side of the complainant. After closure of the complainant's evidence, the revision petitioner was questioned under Sec.313 of the Code of Criminal Procedure (for short, 'the Code') and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that he had not purchased any articles in his individual capacity and he was only a Manager of the concern who purchased the articles. No evidence was adduced on his side in defence.
4. After considering the evidence on record, the Court below found the revision petitioner guilty under Sec.138 of the NI Act and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay a compensation of Rs.1,41,000/- (Rupees one lakh forty one thousand only) in default to undergo simple imprisonment for three months under Sec.357(3) of the Code.
5. Dissatisfied by the same, the revision petitioner filed Crl. Appeal No.449 of 2013 before the Sessions Court, Kozhikode and the 2nd Additional Sessions judge by the impugned judgment dated 08.08.2014 confirmed the order of conviction but, modified the substantive sentence to imprisonment till rising of the Court and enhanced the compensation amount to Rs.1,45,000/- (Rupees one lakh forty five thousand only). Dissatisfied by the same, the present revision has been filed by the revision petitioner/accused before the Court below.
6. Considering the nature of contentions raised and also the findings of the Court below on fact, this Court felt that the revision can be disposed of at the admission stage itself after hearing the counsel for the revision petitioner and the Public Prosecutor appearing for the 2nd respondent dispensing with notice to the 1st respondent.
7. The counsel for the revision petitioner submitted that the cheque was not issued in his individual capacity but, it was issued in the name of the concern and as such, he is not liable to pay the amount. Further, the execution of the cheque has not been proved.
8. Learned Public Prosecutor supported the concurrent findings of the Court below.
9. The case of the complainant in the complaint was that they are conducting business in Tiles in Kochi as well as in Kozhikode and the accused as their customer, purchased certain articles from Kochi as well as from Kozhikode and in discharge of that liability, he had issued Ext.P1 cheque for an amount of Rs.1,30,528/- (Rupees one lakh thirty thousand five hundred and twenty eight only) being the value of articles purchased namely Rs.55,160/- (Rupees fifty five thousand one hundred and sixty only) from Kozhikode branch and Rs.75,328/- (Rupees seventy five thousand three hundred and twenty eight only) from Kochi branch. The accused admitted the purchase and issuance of the cheque but, his case was that he had given the cheque as security for the payment by the person for whom he purchased the articles. PWs.1 and 2 were examined on the side of the complainant and they have proved the transaction and also the issuance of the cheque by the accused. The accused also had no case that he had not issued the cheque. Though he had a case that he is the only a Manager of the concern for whom he had purchased the articles, he had not adduced any evidence to prove this fact. PW2 had categorically stated that he is the Proprietor of that concern and he used to purchase articles from there and he is a regular customer. In the absence of any evidence adduced on the side of the accused to prove his case, the Courts below is relying on the decisions reported in Devan V. Krishna Menon [2010 (2) KLT 397], Seenath V. Joyson [2012 (1) KLT 32], Rangappa V. Mohan [2010 (2) KLT 682 (SC)] and Kumar Exports V. Sharma Carpets [2009 (1) KLT 197 (SC)] rightly came to the conclusion that the complainant had established this case that the accused had issued the cheque in discharge of the liability. The fact that the cheque was dishonoured for the reason funds insufficient and inspite of notice issued, he had not paid the amount were not in dispute. So under the circumstances, the Court below was perfectly justified in coming to the conclusion that the accused had committed the offence punishable under Sec.138 of the NI Act and rightly convicted him for the same and the concurrent findings of the Courts below in this aspect do not call for any interference.
10. As regards the sentence is concerned, though the Trial Court has sentenced him to under go simple imprisonment for three months and also to pay compensation of Rs.1,41,000/- (Rupees one lakh forty one thousand only) in default to undergo simple imprisonment for three months. The revisional Court modified the sentence by sentencing the revision petitioner to undergo simple imprisonment till rising of the Court but, enhanced the compensation to Rs.1,45,000/- (Rupees one lakh forty five thousand only) and default sentence to three months.
11. Considering the fact that the case is of the year 2011 and it was a business transaction in which the cheque was happened to be given and considering the fact that the substantive sentence has been considerably reduced to imprisonment till rising of the Court, enhancing the compensation amount to Rs.1,45,000/- (Rupees one lakh forty five thousand only) by the appellate Court cannot be said to be excessive. So, I do not find any reason to interfere with the sentence imposed by the Court below as modified by the Additional Sessions Judge, as it appears to be just and proper.
12. When this Court was about to dispose of this revision, the counsel appearing for the revision petitioner sought time to pay the amount and he wanted six months time but considering the amount involved, this Court feels that four months time can be granted for this purpose. The revision petitioner is granted time till 17.02.2015 to remit the amount before the Court below or pay the amount to the complainant directly and produce proof of such payment before the Trial Court by presenting the representative of the 1st respondent company to acknowledge that amount. If this is done within the time, then the Court can record that payment as substantial compliance of the order passed by this Court. Any amount deposited already as directed by the appellate Court will be given credit towards this amount and the petitioner need only deposit or pay the balance amount. Till then, the execution of sentence will be kept in abeyance. If the amount is not paid within the time mentioned above, then the Court below is at liberty to proceed with the execution of the conviction warrant against the petitioner in accordance with law .
With the above directions and observations, the revision petition is dismissed.
Sd/-
K. RAMAKRISHNAN JUDGE / True Copy / NS P.A. To Judge