Accused in S.T.No.07/2012 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 - complainant against the revision petitioner 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 borrowed an amount of Rs.75,000/- in discharge of that liability, he had issued Ext.P1 cheque for . The cheque when presented was dishonoured for the reason 'funds insufficient' vide Ext.P2 dishonour memo dated 25.10.2011. The complainant issued Ext.P3 notice dated 15.11.2011 on the same date vide Ext.P4 postal receipt and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment. The revision petitioner 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 offences were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and one witness was examined as PW2 and Exts.P1 to P6 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 had further stated that he had not borrowed any amount and issued any cheque. In fact, his wife has borrowed an amount of Rs.50,000/- from the complainant and issued his blank singed cheque as security for the same. Though the amount was paid, the cheque was not returned and misusing the cheque, the present complaint was filed. In order to prove his case, his wife was examined as DW1 and the revision petitioner himself was examined as DW4, the bank manager was examined as DW2 and one witness was examined as DW3 and Exts.D1 to D4 and X1 to X3 were marked on his side.
5. After considering the evidence on record, the court below disbelieved the case of the revision petitioner and believed the case of the complainant and found that the revision petitioner has committed the offence punishable under Section 138 of the Act and convicted him thereunder and sentenced him to undergo imprisonment till rising of the court and also to pay a fine of Rs.1,50,000/- in default to undergo simple imprisonment for two months. It is further ordered that if the fine amount is realised, the same was directed to be paid to the complainant under Section 357(1)(b) of Code of Criminal Procedure. The revision petitioner filed Crl.Appeal.No.356/2013 before the Sessions Court, Kollam which was made over to Vth Additional Sessions Court, Kollam for disposal and the learned Additonal Sessions Judge by the impugned judgment allowed the appeal in part confirming the order of conviction and sentence of imprisonment till rising of court, but, reduced the fine to Rs.1,00,000/- with default sentence which was directed to be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Aggrieved by the same, the present revision has been filed by the revision petitioner – accused before the court below.
6. Considering the scope of enquiry and nature of contentions raised, 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 first respondent dispensing with notice to the second respondent.
7. The Counsel for the revision petitioner submitted that he had adduced evidence by examining DWs 1 to 4 and marking Exts.D1 to D4 and X1 to X3 to prove his case and the evidence will go to show that his case is more probable than the case of the complainant and he had rebutted the presumption and the courts below have not properly appreciated the evidence and wrongly convicted him for the offence alleged.
8. On the other hand, the learned Public Prosecutor supported the concurrent findings of the court below and submitted that the concurrent findings do not call for any interference.
9. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.75,000/- and in discharge of that liability, he had issued Ext.P1 cheque. The case of the revision petitioner was that, his wife had borrowed Rs.50,000/- and issued his cheque as security as a blank singed cheque. Though the amount was paid, the cheque was not returned. Once the execution of the cheque and the transaction is denied, the burden is on the complainant to prove the same. In order to prove his case, the complainant himself was examined as PW1 and one witness was examined as PW2 to prove the transaction and issuance of chque by the revision petitioner. PW1 had categorically stated that the revision petitioner had borrowed the amount and issued the cheque. This was corroborated by PW2 who was employed there as a painter at that time and he had deposed the circumstances under which he happened to witness the transaction. Though they were cross examined at length, nothing was brought out to discredit their evidence on the question of the revision petitioner borrowing the amount and issuing Ext.P1 cheque in discharge of that liability. The case of the revision petitioner was that his wife DW1 had borrowed Rs.50,000/- and issued his cheque as blank signed cheque and the amount was paid by selling his property and he wanted more amount and the cheque was not returned. In order to prove his case, DWs 1 to 4 were examined. When PW1 was cross examined, the suggestion given was that, his wife had borrowed Rs.25,000/- and issued his blank signed cheque. But at the time when DW1 was examined, her case was that she borrowed Rs.50,000/- and issued the cheque and repaid the amount. But, the cheque was not returned. Further, the evidence as well as the documents produced on the side of the revision petitioner will go to show that they were in need of money in respect of construction of the house and loan was taken from the bank and in order to discharge the liability, they will have to sell out their property as well. Further, she had not produced any document to prove the discharge pleaded by him. He had not take any steps to get back the cheque from the complainant when the payment was made for the assurance which as security, the cheque was said to have been given. He did not send any reply to the notice issued and he had admitted when he was examined as DW4 that he had received the notice but he did not send any reply. So, all these circumstances will go to show that the case of the revision petitioner is not believable and the case of the complainant is believable and rightly the courts below have come to the conclusion that the revision petitioner has borrowed Rs.75,000/- and in discharge of that liability, he had issued the cheque. He had no case that he had repaid the amount after receipt of the notice. Once it is proved by the complainant that the revision petitioner had not paid the amount in spite of notice issued, then, offence under Section 138 of the Act is complete. So, the courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below on this aspect on appreciation of fact do not call for any interference.
10. As regards the sentence is concerned, the trial court had convicted him and sentenced him to undergo imprisonment till rising of court and to pay a fine of Rs.1,50,000/- in default to undergo simple imprisonment for two months, further directed to pay the fine amount if realised to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. The appellate court reduced the fine to Rs.1,00,000/- and retained the other sentence imposed by the court below and the direction to pay compensation to the complainant out of the fine amount.
11. In the decision reported in Somnath Sarkar Vs.
Utpal Basu Mallick [2013(4) KLT 350 (SC)], the Honourable Supreme Court has held that court has got power to impose double the cheque amount as fine and out of the fine amount, compensation can be awarded under Section 357 (1)(b) of Code of Criminal Procedure. The transaction was of the year 2011. So, the appellate court had considered this aspect and reduced the fine amount to Rs.1,00,000/- which cannot be said to be excessive. So, no illegality has been committed by the appellate court in fixing the fine which requires any interference by this court.
12. While this court was about to dispose of the case, the Counsel for the revision petitioner prayed six months time for payment of the amount. Considering the amount involved, this court feels that the same can be granted. So, the revision petitioner is granted time till 21.05.2015 to pay the amount. Till then, the execution of the sentence is directed to be kept in abeyance. If the amount is paid directly to the complainant by the revision petitioner and if he produces proof of such payment and if the complainant appears before the court below and acknowledges the receipt of the same, then, the court below is directed to treat the same as substantial compliance of payment of compensation out of fine as directed by this court and permit the revision petitioner to undergo the substantive sentence of imprisonment till rising of court and close the same after recording the payment 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]. If any amount has been deposited by the revision petitioner in compliance with the directions if any given by the Sessions Court, then, that can be directed to be adjusted towards this fine amount and he need pay only the balance amount to satisfy the the fine imposed.
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