Accused in ST.No.7/2010 on the file of the Judicial First Class Magistrate Court-IV, Kottayam, is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the first respondent –complainant against the revision petitioner alleging offence under section 138 of the Negotiable Instruments Act (herein after called the Act).
3. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.54,000/- and in discharge of that liability, he had issued Ext.P3 cheque, which when presented was dishonoured for the reason funds insufficient vide Ext.P4 dishonour memo. The complainant issued Ext.P6 notice vide Ext.P7 postal receipt and the same was received by the revision petitioner evidenced by Ext.P8 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.
4. 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 Power of Attorney of the complainant was examined as PW1 and later the complainant himself was examined as PW2 and Exts.P1 to P9 were marked on his side. After closure of the complainant’s evidence, revision petitioner was questioned under section 313 of the Code of Criminal Procedure (herein after called the Code) and he denied all the incriminating circumstances brought against him in the complainant’s evidence. He had further stated that the he was acting as a mediator in the transaction between PW2 the complainant and one Future Carrier establishment, Thiruvananthapuram and issued a blank signed cheque which was misused and the present complaint was filed. No evidence was adduced on his side in defence. 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 two months and also to pay a fine of Rs.58,000/- in default to undergo simple imprisonment for two months 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 Crl.Appeal No.347/2011 before the Sessions Court, Kottayam, which was made over to Additional Sessions Court (Adhoc-I), Kottayam, for disposal and the learned Additional Sessions Judge by the impugned judgment allowed the appeal in part confirming the order of conviction and fine and direction to pay compensation out of fine amount but reduced the substantive sentence till rising of court. Aggrieved by the same, the present revision has been filed by the revision petitioner- accused before the court below.
5. Since, respondent also appeared before this court, this court felt that the revision can be admitted and can be disposed of on merit after hearing both sides today itself. So, the revision is admitted and heard both sides and disposed of today itself.
6. The counsel for the revision petitioner submitted that the evidence of PWs 1 and 2 is not believable. Further, even going by the evidence it is seen that he had given his cheque as security in the transaction between the Future Carrier Establishment, Thiruvananthapuram and PW2. So, there is no direct transaction and the cheque is not supported by any consideration and the courts below were not justified in convicting the revision petitioner for the offence alleged.
7. On the other hand, counsel for the second respondent submitted that it was proved that the transaction between Future Carrier Establishment, Thiruvananthapuram and PW2 for getting an admission for his son though the revision petitioner and some amount was required for that purpose and that was paid directly to the revision petitioner and since he did not return the amount, they filed a complaint before the Circle Inspector of Police and he executed Ext.P2 agreement and also issued Ext.P3 cheque and no evidence has been adduced on the side of the revision petitioner to show that it was obtained by coercion or threat. He did not make any complaint regarding the same as well. So, according to him the courts below were perfectly justified in convicting the revision petitioner for the offence alleged.
8. The case of the complainant in the complaint was that for the amount due from the revision petitioner to the complainant, he had issued Ext.P3 cheque. It was brought out to evidence when he was examined as PW2 that as instructed by the revision petitioner, they went to the Future Carrier Establishment, Thiruvananthapuram and he had given Rs.3500/- dollars at his intervention and out of this Rs.1500/- dollars received by the revision petitioner at their instance which he had agreed to repay if the transaction was not fulfilled. But the transaction as agreed was not fulfilled and he did not pay the amount. So, Ext.P1 complaint was filed before the Home Minister and that was forwarded to the Circle Inspector of Police, Kottayam and both were called to the police station and they have entered into the settlement and Ext.P2 agreement was entered into and also he had given Ext.P3 cheque in discharge of that liability. In order to prove this fact, PWs 1 and 2 were examined. PW1 is none other than the brother of the complainant and complainant himself was examined as PW2 also. Both of them were deposed in support of their case in the complaint. Though, they were cross- examined at length, nothing was brought out to discredit their evidence on this aspect. Further, he had not disputed the execution of Ext.P2 agreement and issuance of Ext.P3 cheque. His case was that the cheque was given as security for the transaction between the Future Carrier Establishment, Thiruvananthapuram and PW2. He had no case that the amount was paid by the Future Carrier Establishment, Thiruvananthapuram. Even, assuming that the case of the revision petitioner is acceptable even then if he had undertaken to pay the liability of another and issued a cheque and if it is dishonoured and it was not paid after issuance of notice, then it will also fall under the offence under section 138 of the Act. Further, he did not send any reply to Ext.P6 notice as well. So, under the circumstances and in the absence of any convincing evidence adduced on the side of the revision petitioner to prove his case, the courts below were perfectly justified in convicting the revision petitioner for the offence under section 138 of the Act and the concurrent findings of the courts below on this aspect do no call for any interference.
9. As regards the sentence is concerned, the learned Magistrate had sentenced him to undergo simple imprisonment for two months and also to pay a fine of Rs.58,000/- in default to undergo simple imprisonment for two months more. It is further ordered 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. The appellate court, though confirmed the fine and direction to pay compensation, reduced the substantive sentence to imprisonment till rising of court. Maximum leniency has been shown by the appellate court in imposing the sentence. So, I don’t find any reason to interfere with the sentence imposed by the trial court as modified by the appellate court as it appears to be just and proper.
10. While this court was about to dispose of the case, the counsel for the revision petitioner prayed five months time for payment of the amount. Considering the amount involved, this court feels that the same can be granted. So, the revision petitioner is granted time till 17.04.2015 to pay the amount. Till then the execution of the sentenced is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and the revision petitioner produces proof of such payment before the court below and if it is acknowledged by the complainant by appearing before that court, then the court below is directed to treat the same as substantial compliance of payment of compensation out of fine as ordered by the court below and confirmed by this court and record the same in the respective registers and allow the revision petitioner to serve the substantive sentence of imprisonment till rising of court alone as provided in the decision reported in Beena V. Balakrishnan Nair and Another [2010(2) KLT 1017] and Sivankutty V. John Thomas and Another [2012 (4) KLT 21] With the above directions and observations, the revision is dismissed. Office is directed to communicate this order to the concerned court immediately.
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K.RAMAKRISHNAN, JUDGE R.AV //True copy// PA to Judge