1. This revision petition is filed by the accused in C.C.No.175/2009 on the file of the Judicial First Class Magistrate Court-II, Chengannur and the appellant in Criminal Appeal No.368/2010 of Additional Sessions Court-
II (ADHOC), Mavelikkara to set aside the same under Section 397 of the Code of Criminal Procedure.
2. My predecessor had issued notice on admission to the 2nd respondent and 2nd respondent appeared through counsel and the public prosecutor appeared for the 1st respondent. At the time when notice was issued on admission, this Court had suspended the execution of the non-bailable warrant issued for a period of three weeks on condition of deposit of Rs.5,000/- within a period of two weeks before the lower court. According to the petitioner, the same has been deposited. But thereafter, the time was not extended. Now he seeks time only to deposit the entire amount as his client is prepared to deposit the same.
3. On going through the judgments of both Courts, this Court felt that there is no necessity to admit the revision and the revision can be disposed of at the admission stage itself.
4. Heard the counsel for the revision petitioner, counsel for the 2nd respondent and the learned Public Prosecutor on admission.
5. The case was taken on file on the basis of a private complaint filed by the 2nd respondent herein against the revision petitioner alleging that the revision petitioner borrowed a sum of Rs.20,000/- and issued Ext.P1 cheque dated 20.01.2008 drawn on Lord Krishna Bank Ltd., Chengnnur, (now Centrurian Bank of Punjab Ltd.) in discharge of the liability and the 2nd respondent had presented the same for collection through State Bank of Travancore, Chengannur Branch and that was dishonoured for the reason 'funds insufficient', vide Ext.P2 dishonour memo and this was intimated to the 2nd respondent by his bank as per Ext.P3 intimation memo and the 2nd respondent issued Ext.P6 notice to the revision petitioner intimating dishonour and demanding payment of the amount as required 138 of the Negotiable Instruments Act evidenced by Ext.P4 postal receipt and received by the revision petitioner evidenced by Ext.P5 postal acknowledgment and in spite of that she had not paid the amount. So he filed the complaint. When the accused appeared before the court below, particulars of offence were read and explained to her. She pleaded not guilty. On the side of the complainant, Pws 1 and 2 were examined and Exts. P1 to P6 were marked. On the closure of the complainant's evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and she denied all the incriminating circumstances bought against her in the complainant's evidence. She had further stated that she has no transaction with the complainant and her driver, one Satheesan had stolen her cheque leaf and handed over to the complainant for the financial transaction between the said Satheesan and the complainant and by misusing that cheque, the complaint was filed. She had examined DW1, the Manager of the Bank and marked Ext.D1 to prove that the signature in Ext.P1 was not her signature.
6. After considering the evidence on record, the learned Magistrate found the revision petitioner guilty under Section 138 of the Negotiable Instruments Act (hereinafter called the Act) and convicted her thereunder and sentenced her to undergo simple imprisonment for six months and also to pay a compensation of Rs.20,000/- to the complainant in default to undergo simple imprisonment for three months under Section 357 (3) of the Code of Criminal Procedure. Aggrieved by the order of conviction of sentence of the trial court the revision petitioner filed Criminal Appeal No.368 of 2010 before the Sessions Court, Alappuzha which was made over to the Additional Sessions (ADHOC) Fast Track Court, Mavelikkara for disposal. The learned Additional Sessions Judge confirmed the order of conviction passed by the court below and also the compensation directed to be paid under Section 357 (3) of the Code of Criminal Procedure but reduced the substantive sentence to imprisonment till raising of court. Dissatisfied with the same, the present revision has been filed by the revision petitioner.
7. According to the counsel for the revision petitioner, the courts below were not justified in discarding the evidence of DW1 and Ext.D1 which will show that the signature in Ext.P1 is not that of the accused and the complainant has not proved the execution of the cheque.
8. On the other hand the counsel for the 2nd respondent submitted that there is nothing to interfere with the concurrent findings of the court below and after considering all the circumstances courts below concurrently found that the accused had committed the offence.
9. It is true, that the revision petitioner had disputed the issuance of the cheque. Once the issuance of cheque has disputed by the accused, the burden is on the complainant to prove the execution of the cheque and once that burden is discharged by the complainant, then the presumption under Section 139 of the Act will be attracted. Then the burden is on the accused to disprove the same. In this case the complainant had issued Ext.P6 notice, when the cheque was dishonoured and it was received by the revision petitioner evidenced by Ext.P5 acknowledgment card. Admittedly she had not sent any reply to the same. Her case was that the cheque leaf was stolen by her driver Satheesan and misused and the present complaint was filed. But she had not taken any steps against the said Satheesan for the alleged stealing of the cheque. She had not informed the Bank as well. So the story of the cheque being stolen by her driver and handed over to the complainant appears to be not believable. Further, the accused had no case that the present complainant had got any enmity against the accused for misusing such cheque to help said Satheesan and file a false complaint against the petitioner as well.
10. Only evidence relied on by the revision petitioner is the evidence of DW1, the Bank Manager and Ext.D1, the specimen signature card containing the specimen signature of the revision petitioner maintained in the Bank. It is true, DW1 had stated that there is some difference in the signature. But that alone is not sufficient to come to the conclusion that the signature in Ext.P1 was not that of the accused. The trial court as well as the appellate court had compared the signature of the accused in the Vakalath, 313 statement and also in the cheque and acknowledgment card and come to the conclusion that they are identical and rightly come to the conclusion that the signature in Ext.P1 was that of the accused. Further, PW2 was examined on the side of the complainant to prove the entire transaction alleged in the complaint. He had categorically stated that the cheque was executed and issued to the complainant by the revision petitioner in his presence. So under the circumstances, the courts below were perfectly justified in come in to the conclusion that the revision petitioner had borrowed the amount from the complainant and issued Ext.P1 cheque in discharge of that liability and in spite of notice issued when the cheque was dishonoured for insufficient funds in account, she did not pay the amount and thereby she had committed the offence punishable under Section 138 of the Negotiable Instruments Act and I do not find any reason to interfere with the same as well.
11. As regards the sentence is concerned, the courts below were perfectly justified in directing the revision petitioner to pay the cheque amount as compensation with default sentence of three months simple imprisonment under Section 357(3) of the Code of Criminal Procedure. The appellate court had reduced the substantive sentence of six months imposed by the trial court to imprisonment till raising of court as well. So under such circumstances, there is nothing to interfere with the sentence imposed by the court below as well as maximum leniency has been shown by the appellate court in imposing sentence as well.
12. The counsel for the revision petitioner submitted that if some time is granted, the revision petitioner is prepared to deposit the amount. The counsel for the petitioner also submitted that he had already deposited Rs.5,000/- as directed by this Court. If Rs.5,000/- is deposited by the revision petitioner already as directed by this Court then the lower court is directed to adjust the same towards the compensation awarded to the complainant. Considering the circumstances and also considering the fact that revision petitioner is a lady, this Court feels that some leniency can be shown and some time can be granted to the petitioner to deposit the balance amount as well. If the petitioner deposits the balance amount after deducting the amount of Rs.5,000/- already deposited or if no amount is deposited if the petitioner deposits the entire amount awarded as compensation Rs.20,000/- within one month from today, then the learned Magistrate is directed to keep the execution of the warrant in abeyance till that period. So the revision is disposed of as follows:
Revision petition is dismissed. But one month time is granted to revision petitioner to deposit the amount ordered as compensation within one month from today. Till then, lower court is directed to keep the execution of warrant in abeyance. If the petitioner has already deposited Rs.5,000/- as directed by this Court, then the petitioner need deposit only the balance amount towards compensation payable. If the petitioner did not deposit the amount as directed within the time specified by this Court, then lower court is at liberty to proceed with coercive steps. Petitioner is also permitted pay the amount directly to the complainant and appear before court below along with the complainant within the time specified and appraise the court that the amount has been paid and produce receipt for payment of that amount to the complainant before the court below. If the petitioner produces such a receipt with acknowledgment of payment, it can be treated by the lower court that the direction to deposit Rs.20,000/- has been complied with. Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.RAMAKRISHNAN, JUDGE.
//TRUE COPY// P.A TO JUDGE DG