Accused in S.T.No.02/2012 on the file of the Judicial First Class Magistrate Court, No-III, Kanjirappally is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the complainant - first respondent herein against the revision petitioner alleging offences under Section 138 of the Negotiable Instruments Act. (hereinafter called 'the Act')
3. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.1,60,000/- and in discharge of that liability, he had issued Ext.P1 cheque which when presented was dishonoured for the reasons 'funds insufficient' and 'signature differs' vide Ext.P2 dishonour memo and that was intimated to the complainant by his banker vide Ext.P3 intimation. He issued Ext.P4 notice on the same day vide Ext.P5 postal receipt and it was returned with endorsement 'unclaimed'. He had not paid the amount. So, he 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 offences were read over and explained to him and he had pleaded not guilty. In order to prove the case of the complainant, PWs 1 to 3 were examined and Exts.P1 to P7 were marked on his side. After closure of the complainant's evidence, the revision petitioner 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, his father was having some monetary transactions with the complainant years ago and Ext.P1 cheque was given by his father as security in respect of those transactions. Though the transactions were over, the cheque was not returned. No evidence was adduced on his side in defence.
5. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for one year and also to pay a compensation of Rs.1,60,000/- in default to undergo simple imprisonment for four months under Section 357(3) of Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal.No.60/13 before the Sessions Court, Kottayam which was made over to Additional Sessions Court, No-IV, Kottayam for disposal and the learned Additional Sessions Judge by the impugned judgment allowed the appeal in part confirming the order of conviction and compensation with default sentence, but, modified the substantive sentence by reducing the same to imprisonment till rising of court from one year imprisonment imposed 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 involved and also 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 second respondent dispensing with notice to the first respondent.
7. The Counsel for the revision petitioner submitted that it is not a case of dishonour of cheque for any of the reasons mentioned in the Section namely, for insufficient fund or not arranged for, but, it was for the reason signature differs. Since the execution of the cheque has been denied, the burden is on the complainant to prove that it was executed and delivered by the revision petitioner for which no satisfactory evidence was given. So, under the circumstances, courts below were not justified in convicting the revision petitioner for the offence alleged.
8. On the other hand, the learned Public Prosecutor submitted that there is no need to interfere with the concurrent findings of the court below and no rebuttal evidence was adduced on the side of the revision petitioner to rebut the presumption available under Section 139 of the Act.
9. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.1,60,000/- and in discharge of that liability, he had issued Ext.P1 cheque. The case of the revision petitioner was one of total denial. His case was that, there was some transaction between the complainant and the father of the revision petitioner and for that purpose, his cheque was given as security and though the transaction between them was completed, the cheque was not returned and misusing the cheque, the present complaint was filed.
10. In order to prove the case of the complainant, the complainant himself was examined as PW1 and one witness was examined as PW2. PW1 had categorically stated that, he had sold the timber to one Aji as per Ext.P7 agreement and obtained the money which he had paid to the revision petitioner. PW2 had stated that he was present at the time when the complainant paid the amount and the revision petitioner executed the cheque and handed over the same. Both PWs 1 and 2 have stated that the cheque was dully filled and it was signed in their presence. Further, the reason for return was the signature differs. One cannot believe for moment that, a blank cheque will be given as security without any signature and any person will accept such a cheque as a security as well. So, under the circumstances, the stand taken by the revision petitioner that, signature in Ext.P1 was not his, cannot be accepted. He had no case that his father had forged his signature or handed over the same to the complainant without his knowledge. According to him, his cheque was given as security for the transaction between the complainant and the father of the revision petitioner. But, no evidence was adduced on his side to prove this fact. Further, there is nothing to disbelieve the evidence of PWs 1 and 2 regarding the aspect of the revision petitioner borrowing the amount and issuing Ext.P1 cheque as well. So, it is a case where the complainant had proved both the borrowal and execution of the cheque. Merely because there is difference in signature is not a ground to disbelieve the case of the complainant and even if it is returned for the reason signature differs, unless the accused proves that there is fund in the account and the cheque was dishonoured only for the reason difference in signature, he cannot escape the liability under Section 138 of the Act. This was so held in the decision reported in Laxmi Dyechem Vs. State of Gujarat [2013 (1) KLT 167 (SC)]. So, once the execution and delivery of the cheque were proved by the complainant, then, the burden is on the revision petitioner to rebut the same and he had not adduced any evidence to prove this fact. So, under the circumstances, courts below were perfectly justified in rejecting the contentions of the revision petitioner and believing the evidence of PWs 1 and 2, came to the conclusion that Ext.P1 cheque was issued by the revision petitioner in discharge of his liability for the amount due from him to the complainant and the concurrent findings of the court below do not call for any interference.
11. The revision petitioner had a case that he had not received the notice and there is want of notice under Section 138 of the Act. The notice was sent in the address in which normally it will be served on the accused. Further, PW3 - a postman was examined to prove that, he had given intimation regarding the receipt of the notice to the revision petitioner and in spite of that, he did not receive the same and so, it was returned with endorsement 'unclaimed'. There is nothing to disbelieve the evidence of PW3 on this aspect. So, under the circumstances, there is no merit in the submission made by the Counsel for the revision petitioner that, there is no statutory notice served on the revision petitioner so as to come to the conclusion that the complaint is not maintainable for want of notice under Section 138 of the Act. The revision petitioner had no case that he had paid the amount. So, under the circumstances, courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Act. The finding does not call for any interference.
12. As regards the sentence is concerned, the trial court had sentenced the revision petitioner to undergo simple imprisonment for one year and also to pay the cheque amount of Rs.1,60,000/- as compensation in default to undergo simple imprisonment for four months under Section 357(3) of Code of Criminal Procedure. But, the appellate court though confirmed the direction to pay compensation with default sentence, reduced the substantive sentence of imprisonment of one year to imprisonment till rising of court. So, maximum leniency has been shown by the appellate court in imposing the sentence which cannot be said to be harsh or excessive. So, this court finds no reason to interfere with the sentence imposed by the court below as well as it appears to be just and proper.
13. While this court was about to dispose of the case, the learned Counsel for the revision petitioner prayed six months time for payment of the amount. Considering the amount involved, this court feels that, time as prayed for can be granted. So, the revision petitioner is granted time till 06.05.2015 to pay the amount. Till then, the execution of sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and produces proof of such payment before the trial court within this time and this was acknowledged by the complainant by appearing before the court below, then, lower court is directed to treat the same as substantial compliance of payment of compensation as ordered by the courts below and confirmed by this court and record the same in the respective registers as provided 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 allow the revision petitioner to receive the substantive sentence imposed by the appellate court and confirmed by this court.
With the above direction and observation, the revision petition is dismissed.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge