Accused in C.C.No.48/12 of Judicial First Class Magistrate Court, No-II, Vatakara is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the complainant under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').
3. The case of the prosecution in nutshell was that the accused borrowed a sum of Rs.1,25,000/- and in discharge of that liability, he had issued Ext.P1 Cheque dated 24.09.2009 drawn on Eramala Co-operative Urban Society of Eramala branch in favour of the complainant. The complainant presented the cheque for collection and the same was dishonoured for the reason 'funds insufficient' vide Ext.P2 dishonour memo dated 10.03.2010. The complainant issued Ext.P3 notice dated 17.03.2010 and the same was received by the accused vide Ext.P5 postal acknowledgment dated 18.03.2010. The complainant had not paid the amount. So, he had committed the offence punishable under Section 138 of the Act.
4. When the accused appeared before the court below, the particulars of offences were read over and explained to him, he pleaded not guilty. In order to prove the case of the complainant, complainant himself was examined as PW1 and Exts.P1 to P3 and P5 were marked on his side. After closure of the complainant's evidence, the accused 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 no transaction with the complainant and he had borrowed some amount from one Sankaran and issued a blank signed cheque and though he paid the amount, the cheque was not returned and misusing the cheque, the present complaint has been filed. In order to prove this case, the accused himself was examined as DW1. 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.1,25,000/- in default to undergo simple imprisonment for two months. It is further ordered that if the fine amount is realized, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Aggrieved by the same, he filed Crl.Appeal No.640/12 before the Sessions Court, Kozhikode which was made over to Additional Sessions Court, Vatakara for disposal and the learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction and fine imposed with direction to pay compensation out of fine, but, modified the substantive sentence to imprisonment till rising of court and default sentence to three months. Aggrieved by the same, the present revision has been filed by the revision petitioner- accused before the court below.
5. Since the dispute to be resolved is very little, this court felt that the revision can be disposed of at the admissions stage itself after hearing the Counsel for the revision petitioner and the Public Prosecutor appearing for the second respondent dispensing with notice to first respondent.
6. The Counsel for the revision petitioner submitted that the evidence of DW1 and the admission of PW1 to some extent will go to show that the case of the accused is more probable and the blank singed cheque given was misused. Further, no independent witnesses have been examined to prove the transaction as well. So, the accused had rebutted presumption, the courts below were justified in convicting the appellant for the offence alleged.
7. The Public Prosecutor supported the concurrent findings of the court below.
8. The case of the complainant in the complaint was that accused borrowed a sum of Rs.1,25,000/- and in discharge of that liability, he had issued Ext.P1 cheque. The case of the accused was one of total denial. In order to prove the case of the complainant, the complainant himself was examined as PW1 and he deposed in support of his case in the complaint. It is true that he had deposed in the cross examination that, there is difference in the hand writing of the writings in the cheque and the signature of the cheque. But, he had clarified that the accused had brought the cheque duly filled and singed the cheque in his presence. So, merely because there is difference in the hand writing is not a ground for disbelieving the case of the complainant, especially when he had categorically stated that the cheque was brought by the accused duly filled and he had put his signature in his presence. Further, the case of the accused was that he had no transaction with the complainant and his case was that he had borrowed some amount from one Sankaran and he gave a blank signed cheque. Though he paid the amount, the cheque was not returned. It is true that he himself was examined as DW1. He had admitted that he had not taken any action against Sankaran for misusing his cheque. He had also admitted that he had not sent any reply to Ext.P3 notice issued by the complainant when the cheque was dishonoured. So, under the circumstances, merely because he had a case that he had no transaction, but the conduct of the accused of not sending a reply and not taking any action against Sankaran will go to show that his case is not believable and he is raising such contentions only for the purpose of contention sake. So, under the circumstances, courts below were perfectly justified in coming to the conclusion on the basis of evidence available on record that the complainant had proved that the accused had issued Ext.P1 cheque in discharge of his liability and in spite of notice issued, intimating the dishonour, he did not pay the amount and rightly convicted the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below on this aspect do not call for any interference as no illegality has been committed by the court below in arriving in such conclusion.
9. As regards the sentence is concerned, the trial court had sentenced him to undergo simple imprisonment for three months and also to pay a fine of Rs.1,25,000/- in default to undergo simple imprisonment for two months and it is further ordered that if the fine amount is realized, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. The appellate court had modified the sentence reducing the substantive sentence to imprisonment till rising of court and enhanced the default sentence to three months. Since the substantive sentence has been reduced to imprisonment till rising of court, there is nothing wrong in enhancing the default sentence of payment of fine. So, it cannot be said that there is illegality committed by the court below. Maximum leniency has been shown by the appellate court in imposing the sentence as well. So, considering the circumstances, there is no infirmity in the revision which warrants interference of this court.
10. When the revision was about to be disposed of, the Counsel for the revision petitioner sought nine months time for payment of the amount. Considering the amount involved, this court feels that seven months time can be granted to the petitioner to pay the amount. The revision petitioner is directed to pay the fine amount less the amount if any already deposited by the revision petitioner before the court below as directed by Sessions Court for suspending the sentence on or before 20.05.2015. Till then, the execution of sentence is directed to be kept in abeyance. The amount if any already deposited will be permitted to be withdrawn by the complainant.
With the above observation and direction, this revision petition is dismissed.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge