Accused in S.T.No.101/2011 of the Judicial First Class Magistrate Court, No-II, Karunagappally is the revision petitioner herein.
2. 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').
3. The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs.3,00,000/- and in discharge of that liability, she had issued Ext.P1 cheque which when presented was dishonoured for the reason 'funds insufficient' vide Ext.P2 dishonour memo. The complainant issued Ext.P5 notice dated 13.05.2009 on the same day vide Ext.P3 postal receipt and the same was received by the revision petitioner evidenced by Ext.P4 postal acknowledgment. She had not paid the amount. So, she 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 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 P5 were marked on her side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of Code of Criminal Procedure and she denied all the incriminating circumstances brought against her in the complainant's evidence. According to her, she had borrowed a sum of Rs.20,000/- from the complainant by giving a blank signed cheque as security and though she paid the amount, the cehque was not returned. No evidence was adduced on her side in defence.
5. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo imprisonment till rising of court and also to pay a fine of Rs.2,50,000/- after deducting the amount of Rs.50,000/- paid during the penency of the proceedings in default to undergo simple imprisonment for six 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) of Code of Criminal Procedure. The revision petitioner filed Crl.Appeal.No.113/013 before the Sessions Court, Kollam which was made over to IInd Additional Sessions Court, Kollam for disposal and the learned Additional Sessions Judge by the impugned judgment, dismissed the appeal confirming the order of conviction and sentence passed by the court below. 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 second respondent dispensing with notice to the first respondent.
7. The Counsel for the revision petitioner submitted that the courts below have not properly appreciated the evidence and the evidence of PW1 will probablise the case of the revision petitioner and prayed for acquittal.
8. The learned Public Prosecutor supported the concurrent findings of the court below.
9. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.3,00,000/- and in discharge of that liability, she had issued Ext.P1 cheque. The case of the revision petitioner was that, she borrowed only Rs.20,000/- and she had given a blank signed cheque and though she paid the amount, the cheque was not returned and misusing the cheque, the present complaint was filed. PW1 was examined to prove the case. Though she was cross examined at length, nothing was brought out to discredit her evidence regarding the transaction and the revision petitioner issuing the cheque in discharge of that liability. No evidence was adduced on the side of the revision petitioner to prove her case. She did not even send any reply to the notice issued also. So, considering the over all circumstances and also in the absence of any evidence adduced on the side of the revision petitioner to rebut the presumption, the courts below were perfectly justified in believing the evidence of PW1 and relying on the statutory presumptions available under Section 139 and 118 of the Act, rightly convicted the revision petitioner for the offence alleged and the concurrent findings of the court below do not call for any interference.
10. As regards the sentence is concerned, court below had sentenced the revision petitioner to undergo imprisonment till rising of court and also to pay the balance amount of Rs.2,50,000/- as fine in default to undergo simple imprisonment for six months and further directed to pay the fine amount if realised to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure and this was confirmed by the appellate court. Maximum leniency has been shown by the courts below in imposing the sentence which this court do not feel fit to interfere as it appears to be just and proper.
11. While this court was about to dispose of the revision, the Counsel for the revision petitioner prayed six months time to pay the amount. Considering the amount involved and also considering the fact that the revision petitioner is a lady, the request appears to be reasonable. So, the revision petitioner is granted time till 15.06.2015 to pay the amount . Till then, the execution of sentence is directed to be kept in abeyance. If the petitioner pays the amount directly to the complainant and produces proof of such payment and if the complainant appears before the court below and acknowledges the same, then, the lower court is directed to treat the same as compliance of payment of compensation out of fine as directed by the courts below and confirmed by this court and record the same in the respective registers as observed 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.
Bb Sd/-
K.Ramakrishnan, Judge.
[True copy] P.A to Judge