Accused in CC.89/2007 on the file of the Judicial First Class Magistrate Court-I, Cherthala 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 (herein after called the Act). The case of the complainant in the complaint was that the accused issued Ext.P1 cheque in discharge of her liability towards the loan amount and the cheque when presented was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo. This was intimated to the complainant by Ext.P3 intimation letter. The complainant issued Ext.P4 notice vide Ext.P5 postal receipt and the same was received by the accused evidenced by Ext.P6 postal acknowledgment. The accused had not paid the amount. So he had committed the offence punishable under section 138 of the Act.
3. When the accused appeared before the court below, the particulars of offence read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, the authorised agent of the complainant was examined as PW1 and Exts.P1 to P6 were marked on their side.
After closure of the complainant’s evidence, the accused was questioned 313 of the Code of Criminal Procedure (hereinafter called the Code) and she denied all the incriminating circumstances brought against her in the complainant’s evidence. She had further stated that she had availed loan from the complainant for purchasing the vehicle with No.KL-04-Q1153 and at the time they obtained black signed cheque and the vehicle later was repossessed and misusing the cheque, the present complaint was filed. In order to prove the her case DWs 1 and 2 were examined. After considering the evidence on record, the court below disbelieved the case of the accused and found that the accused had issued Ext.P1 cheque after repossession of the vehicle while settling the account for the balance amount and found her guilty under section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for one month and also to pay a fine of Rs.15,800/- in default to undergo simple imprisonment for one month. Dissatisfied with the same, the revision petitioner filed Crl.Appeal 553/2010 before the Sessions Court, Alappuzha and the same was made over to Additional Sessions Court-III, Alappuzha for disposal and the learned Additional Sessions Judge allowed the appeal in part and confirming the order of conviction and compensation awarded with default sentence but reduced the substantive sentence of imprisonment till rising of court. Aggrieved by the same, the present revision petition has been filed by the revision petitioner.
4. Though, notice was served on the second respondent, on admission he remained absent. Considering the scope of enquiry and contentions raised this court felt that the revision petition can be disposed of today itself after admitting the same and after hearing the counsel for the petitioner and the learned Public Prosecutor appearing for the first respondent and dispensing with further notice to the respondent No.2. So the same was admitted and heard today itself and disposed of.
5. The counsel for the revision petitioner submitted that the black signed cheque given at the time of availing of loan was misused and in fact the vehicle was repossessed and so the hire purchase agreement is terminated and thereafter they are not entitled to use the cheque given prior to the termination of the agreement.
6. The learned Public Prosecutor supported the concurrent findings of the court below.
7. The case of the complainant in the complaint was that the accused issued Ext.P1 cheque in discharge of her liability in respect of the vehicle transaction. The accused had admitted the money transaction and also admitted that she availed a loan from the second respondent and according to her, at the time when the loan was availed a blank signed cheque was issued as security and thereafter they repossessed the vehicle and sold same and misusing the cheque from earlier, the present complaint was filed. In order to prove this fact, the accused herself was examined as DW2 and one witness was examined as DW1. But it is seen from the evidence of PW1 that the amount mentioned in the cheque was the amount due after the sale of the vehicle and after adjusting the amount and the cheque was given by the accused while settling the amount after repossession of the vehicle. So the dictum laid on in the decision in Sudhadevi V State of Kerala reported in 2004(2) KLT 38 relied on by the learned counsel appearing for the revision petitioner is not applicable to the facts of this case. The accused had no case that she had paid the amount after receipt of the notice. She did not send any reply to the notice issued as well. So, under the circumstances, the courts below were perfectly justified in coming to the conclusion that accused had issued Ext.P1 cheque for the balance amount due after sale of the vehicle and this was dishonoured for the reason funds insufficient and she did not pay the amount in spite of the notice issued and thereby she had committed the offence punishable under section 138 of the Act. The concurrent findings of the courts below on this aspect do not call for any interference as there is no infirmity in the order passed.
8. As regards the sentence is concerned, the court below had imposed substantive sentence of one month that was set aside by the appellate court and it was reduced to imprisonment till rising of court and the lower court only imposed the cheque amount as compensation which was confirmed by the appellate court as well. Maximum leniency has been shown by the appellate court while imposing sentence as well. So I don’t find any reason to interfere with the same as it is appears to be just and proper.
While the revision was about to be disposed of, the counsel for the revision petitioner prays time for payment of the amount. Considering the amount involved and considering the fact that the revision petitioner is a lady, this court feels that one month time can be granted for payment of the amount. So the petitioner is granted time till 20.11.2014 to pay the amount, till then the execution of the sentence is directed to be kept in abeyance. If the revision petitioner pays the amount on or before that day, then the court below is directed to allow her to serve the sentence of imprisonment till rising of court as imposed by the appellate court and confirmed by this court.
With the above direction and observations the revision petition is dismissed. Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.RAMAKRISHNAN, JUDGE R.AV