Accused in S.T.No.391/2012 on the file of the Chief Judicial Magistrate Court, Kollam is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the second respondent herein against the revision petitioner alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').
3. The case of the complainant in the complaint was that the revision petitioner purchased gold ornaments on credit as per Ext.P2 invoice to the tune of Rs.4,50,123/- and in discharge of that liability, he had issued Ext.P1 cheque in favour of the complainant which when presented was dishonoured for the reason 'funds insufficient' evidenced by Ext.P3 dishonour memo and this was intimated to the complainant by his banker vide Ext.P4 intimation letter. The complainant issued Ext.P5 notice vide Ext.P6 postal receipt and the same was received by the revision petitioner evidenced by Ext.P7 postal acknowledgment. He had not paid the amount. So, he had committed the offence punishable under Section 138 of the Act. Hence the complaint.
4. When the revision petitioner appeared before the court below, the particulars of offence was read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the power of attorney holder of the complainant was examined as PW1 and Exts.P1 to P9 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He filed C.M.P.No.7714/13 for sending the cheque for expert opinion and that was dismissed by the court below. No defence evidence was adduced on his side to prove his case.
5. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay a fine of Rs.6,00,000/- in default to undergo simple imprisonment for six months. It is further ordered that, if the fine amount is realised, Rs.5,14,265/- [Rs.4,50,123/-(cheque amount) + 9% interest per annum from the date of cheque] be paid to the complainant as compensation under Section 357(1) (b) of Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal.No.339/13 before the Sessions Court, Kollam which was made over to Second Additional Sessions Court, Kollam for disposal and the learned Additional Sessions Judge by the impugned judgment, allowed the appeal in part confirming the order of conviction, but, modified the sentence to imprisonment till rising of court and also to pay a fine of Rs.5,14,265/- in default to undergo simple imprisonment for four months. It is further ordered that, if the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Three months time was granted to pay the amount. Aggrieved by the same, the present revision has been filed by the revision petitioner – accused before the court below.
6. The Counsel for the revision petitioner submitted that the court below had dismissed the application filed by him for sending the cheque for expert opinion as he had denied the writings in the cheque. So, the court below was not justified in convicting the revision petitioner for the offence alleged.
7. On the other hand, the Counsel for the second respondent submitted that the complainant had no case that the cheque was written in the handwriting of the accused, but, his case was that cheque was duly filled and the revision petitioner had only put his signature in the cheque when it was delivered in their presence. So, there is no necessity to send the cheque for expert opinion for the reason stated in the application and no evidence on the side of the revision petitioner to disprove the case of the complainant.
8. The case of the complainant in the complaint was that revision petitioner purchased gold ornaments worth Rs.4,50,123/- as per Ext.P2 invoice on credit basis and in discharge of that liability, he had issued Ext.P1 cheque. The case of the revision petitioner was that, he had given the cheque as security and it was never intended to be given in discharge of any liability. In order to prove the case of the complainant, the power of attorney holder of the complainant - partnership firm formed by Ext.P9 partnership deed and authorized by Ext.P8 power of attorney was examined as PW1 and he deposed in support of the case of the complainant in the complaint. He had categorically stated that, the revision petitioner came to their shop and purchased gold ornaments on credit basis and brought the cheque dully filled and signed the same in their presence and handed over the same to them. Though he was cross examined at length, nothing was brought out to discredit his evidence on this aspect. Further, no question was put to PW1 regarding the genuineness of Ext.P2 invoice and the transaction between the complainant - firm and the revision petitioner. It is true that the revision petitioner had filed C.M.P.No.7714/13 for sending the cheque for expert opinion on the ground that the writing in the cheque was not that of his. The complainant himself had no case that the cheque was filled by the revision petitioner and their case was that the cheque was brought duly filled and the signature was put by the revision petitioner in their presence and it was delivered to them. So, the court below was perfectly justified in dismissing the application for sending the cheque for expert opinion as no purpose will be served by sending the same.
9. Further, the court below had relied on the decisions reported in Jyothi Prasad Bhat (Dr.) Vs. K. Sundara Rajan and Another [2013 (3) KHC 141], Rangappa Vs. Sri Mohan [2010 KHC 4325] and Devan Vs. Krishna Menon [2010 (2) KLT 397] and came to the conclusion that in the absence of any evidence adduced on the side of the accused to rebut the presumption available under Section 139 of the Act and giving any plausible explanation as to how this cheque had reached in the hands of the complainant and even if the cheque has been given as security and if the amount is not paid, then, the complainant is entitled to use the same as the cheque issued in discharge of liability correctly came to the conclusion that the revision petitioner had committed the offence punishable under Section 138 of the Act and the concurrent findings of the court below on this aspect do not call for any interference.
10. As regards the sentence is concerned, the court below had sentenced him to undergo simple imprisonment for three months and also to pay a fine of Rs.6,00,000/- and in default to undergo simple imprisonment for six months and further directed to pay an amount of Rs.5,14,265/- to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. The appellate court had modified the sentence, restricted the substantive sentence to imprisonment till rising of court and fine of Rs.5,14,265/- and default sentence of four months. So, maximum leniency has been shown by the appellate court in imposing the sentence and it cannot be said to be excessive and it does not call for any interference in the hands of this court.
10. While this court was about to dispose of the revision, the Counsel for the revision petitioner prayed for eight months time to pay the amount. Considering the fact that the case is of the year 2012 and also considering the amount involved, this court feels that the time asked for is on the higher side, but, at the same time, some time can be given for payment. So, granting time till 30.04.2015 to the revision petitioner for payment of the amount will be sufficient and that will meet the ends of justice. So, the revision petitioner is granted time till 30.04.2015 to pay the amount. Till then, the execution of sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and produces proof of payment of the same before the court below and the authorised agent of the complainant appears before the court below and acknowledges the receipt of the same, then, the lower court is directed to treat the same as substantial compliance of the payment of compensation out of fine as directed by the court below and confirmed by this court and record the same in the respective registers as provided in the decisions reported in Beena Vs. Balakrishnan Nair and Another [2010 (2) KLT 1017] and Sivankutty Vs. John Thomas and Another [2012 (4) KLT 21] and permit the revision petitioner to serve the substantive sentence of imprisonment till rising of court.
With the above direction and observation, the revision petition is dismissed.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge