Accused in S.T.No.9419/2009 on the file of the Judicial First Class Magistrate Court-IV, Thiruvananthapuram, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent herein against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').
2. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of ₹40,000/-
from the complainant and in discharge of that liability, she had issued Exts.P1 to P3 cheques, which when presented were dishonored for the reasons ‘funds insufficient’, evidenced by Ext.P4 dishonor memo and that was intimated to the complainant vide Ext.P5 and P6 documents. Complainant issued Ext.P7 notice vide Ext.P8 postal receipt and it was returned with postal endorsement ‘unclaimed’ evidenced by Ext.P9 returned notice. She had not paid the amount. So she had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint.
3. When the revision petitioner appeared before the court below, the particulars of offences were read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, the complainant herself was examined as PW1 and Exts.P1 to P11 were marked on her side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and she denied all the incriminating circumstances brought against her in the complainant's evidence. She had further stated that, there was no transaction between herself and the complainant and there was no amount due. The complainant and her relative came to their house, as some amount was due to the mother of the complainant, who had conducted chitty and forcefully taken some cheque leaves and mis-using the cheque leaves, the present complaint was filed. No defence was adduced on her side. After considering the evidence on record, court below found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for three months and also to pay a fine of ₹40,000/-, in default to undergo simple imprisonment for one month more. 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 the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Criminal Appeal No.428/2011 before the Sessions Court, Thiruvananthapuram, which was made over to the IInd Additional Sessions Court, Thiruvananthapuram, for disposal and the learned Additional Sessions Judge by the impugned judgment allowed the appeal in part, confirming the order of conviction and sentence of fine and direction to pay compensation, but enhanced the default sentence to two months from one month. Aggrieved by the same, the present revision has been filed.
4. Considering the scope of enquiry and also considering the 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 learned Public Prosecutor appearing for the 2nd respondent, dispensing with notice to the first respondent.
5. The counsel for the revision petitioner submitted that, there is no evidence adduced on the side of the complainant to prove execution of the cheque and it is not supported by consideration and a criminal case has been registered which probabilise the case of the revision petitioner that, the cheque was forcefully obtained. So the conviction entered by the court below is not proper.
6. On the other hand, the learned Public Prosecutor supported the concurrent findings of the court below on this aspect.
7. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of ₹40,000/-
and in discharge of that liability she had issued Exts.P1to P3 cheques. The case of the revision petitioner was one of total denial and her case was that, the complainant and others criminally trespassed into her house and forcefully took away the cheques. In order to prove the case of the complainant, the complainant herself was examined as PW1 and deposed in support of the case in the complaint. Though she was cross examined at length, nothing was brought out to discredit her evidence regarding this aspect. The revision petitioner did not send any reply to the notice issued. On the other hand, she had returned the notice, without claiming the same. Further Ext.P10 certified copy of the first information report in Crime No.754/2009 of Peroorkkada police station, which was registered on the basis of the complaint given by the revision petitioner against the complainant and others alleging that they trespassed and attacked her, but the crime was registered after nearly 11/2 years of the alleged incident. The case was registered on the basis of a private complaint filed by her after receipt of the notice in the case. Further in that, nothing was mentioned about the taking away of the cheque leaves as well. Further that was referred after investigation, evidenced by Ext.P11 refer report. She had not adduced any evidence to show as to whether she had perused the matter further or not. So all these things will go to show that, the case of the revision petitioner is not believable and Ext.P10 first information report was registered as a proof for defending this case and nothing more. So under the circumstances, courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act and the concurrent findings of the court below on this aspect do not call for any interference.
8. As regards the sentence is concerned, though the trial court had convicted her to undergo simple imprisonment for two months and also to pay a fine of ₹40,000/- in default to undergo simple imprisonment for one month more and further directed to pay the fine amount as compensation to the complainant under Section 357(1)(b) of the Code of Criminal Procedure, the appellate court had reduced the substantive sentence to imprisonment till rising of the court and enhanced the default sentence to two months retaining the fine and direction to pay compensation out of the fine amount under Section 357(1)(b) of the Code of Criminal Procedure. Maximum leniency has been shown by the appellate court in passing the sentence as well. No interference is call for as it cannot be said to be excessive.
9. While this court was about to dispose of the case, the counsel for the revision petitioner sought time for six months to pay the amount. But considering the amount involved and also considering the fact that, the case is of the year 2009, the period sought for appears to be on the higher side. However four months time is granted to the revision petitioner to pay the amount. So the revision petitioner is granted time till 31.03.2015 to pay the amount, till then the execution of sentence is directed to be kept in abeyance.
With the above direction and observation, the revision petition is dismissed. Office is directed to communicate this order to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, (Judge) // True Copy // P.A. to Judge ss