Accused in C.C.No.322/2004 on the file of the Judicial First Class Magistrate Court, Erattupetta, is the revision petitioner herein. The case was taken on file on the basis of a private complaint, filed by the first respondent against the 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, the revision petitioner borrowed a sum of ₹1,00,000/- and in discharge of that liability, he had issued Ext.P1 cheque, which when presented was dishonoured for the reason ‘funds insufficient’ vide Ext.P2 dishonour memo, and this was intimated to the complainant by his banker vide Ext.P3 intimation letter. The complainant issued Ext.P4 notice to the revision petitioner intimating the dishonour and demanding payment of the amount vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. The revision petitioner had not paid the amount. So he had committed the offence punishable under Section 138 of the Act. Hence the complaint.
3. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P6 were marked on his side. After closure of the complainants evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, he had some transaction with one Sri. V.V. Mathew, who is an employee of Industrial Security Agency, conducted by the revision petitioner and he had given this cheque to him. Though he had paid of the amount due to the said Mathew, the cheque was not returned and mis-using the cheque, the present complaint has been filed. But no defence evidence was adduced on his side to prove this fact. Dissatisfied with the same, he filed Crl.Appeal No.131/2010 before the Sessions Court, Kottayam, along with the delay condonation application as Crl.M.P.No.936/2010 and after hearing, the learned Sessions Judge, dismissed the application for condonation of delay and consequentially dismissed the appeal also as time barred. Aggrieved by the same, the present revision has been filed by the revision petitioner/ accused before the court below with delay condonation application and the delay was condoned and the revision is posted for hearing on admission today.
4. Though notice was sent and it was returned 'unclaimed' in the delay petition and that was declared as proper service. So this court felt that further notice to the first respondent in the revision can be dispensed with and the revision can be admitted and can be disposed of on merit .
5. When the revision came up for hearing today, the counsel for the revision petitioner submitted that, this court can dispose of the revision, as no purpose will be served by sending it to the appellate court for further hearing and it is better to dispose of the case here itself on merit to avoid delay and further the fine amount has already been realised by initiating recovery proceedings, which will be seen from Annexure-A1 and A2. The counsel also submitted that, the lower court was not justified in convicting the appellant, as he had not proved the transaction. The learned Public Prosecutor supported the findings of the court below.
6. The case of the complainant in the complaint was that, the revision petitioner borrowed a sum of ₹1,00,000/- and in discharge of that liability he had issued Ext.P1 cheque. The case of the revision petitioner was that, he had no transaction with the complainant, but he had transaction with one V.V. Mathew, who is working under him as an employee and he had given Ext.P1 cheque as security, though the transaction between them was closed and the cheque was not returned and mis-using the cheque, the present complaint was filed. In order to prove the case of the complaint, the complainant himself was examined as PW1 and he deposed in support of his case in the complaint. Though he was cross examined at length, nothing was brought out to discredit his evidence on this aspect. Further no evidence was adduced on the side of the revision petitioner to prove his case as well. He had not sent any reply to Ext.P4 notice as well. So under the circumstances, the trial court was perfectly justified in coming to the conclusion that, the revision petitioner had committed the offence under Section 138 of the Negotiable Instruments Act and rightly convicted him for the said offence. Since even if the matter is remitted to the appellate court, no purpose will be served and it will only prolong the matter, this court felt that, the conviction entered by the court below can be confirmed, as no illegality has been committed by the learned magistrate in convicting the revision petitioner for the offence alleged.
7. As regards the sentence is concerned, the magistrate has sentenced him to undergo simple imprisonment for four months and also to pay a compensation of ₹1,00,000/-, in default to undergo simple imprisonment for two months more. Since the compensation has already been awarded and as has been explained in the decision reported in Damodar S. Prabhu v. Sayed Babalal H. [JT 2010 (4) (S.C.)457] and [2013(4) KLT 350 (S.C.)] Somanath Sarkar v. Utpal Basu Mallick that the purpose of the legislature to make it a penal provision is to see that, the amount is released and paid to the payee and not to punish him for non-payment of the amount by sending him to jail, this court feels that, the compensation can be converted to fine and the substantive sentence of four months simple imprisonment can be reduced to imprisonment, till rising of the court and direction to pay, if the fine amount is realised, to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure and that will be sufficient and that will meet the ends of justice. So the sentence of the court below is set aside and modified as follows:
The revision petitioner is sentenced to undergo imprisonment till rising of the court and also to pay a fine of ₹1,00,000/- and in default to undergo simple imprisonment for three months. If the fine mount is realised, the same is directed to be paid to the complainant as compensation under Section 357 (1)(b) of the Code of Criminal Procedure. If the fine amount has already been realised by initiating recovery proceedings under Section 421 of the Code of Criminal Procedure, then court below is directed to permit the revision petitioner to undergo substantive sentence of imprisonment and close the file and pay the compensation amount to the complainant.
With the above modification of the sentence and the direction, the revision is allowed in part. Office is directed to communicate this order to the court below, immediately.
Sd/-
K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss