The accused in C.C.No.1602/2005 on the file of the Judicial First Class Magistrate Court, Kattappana is the revision petitioner herein. 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 commission of the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act). 2. The case of the complainant in the complaint was that the accused borrowed a sum of Rs.1,75,000/- and in discharge of that liability, he had issued Ext.P1 cheque dated 20.10.2005 which when presented was dishonoured for the reason funds insufficient evidenced by Exts.P2 dishonour memo dated 22.10.2005 which was intimated to the complainant vide Ext.P3 intimation letter dated 25.10.2005. The complainant issued Ext.P4 notice dated 2.11.2005 vide Ext.P5 postal receipt. The same was received by the accused evidenced by Ext.P6 postal acknowledgment. He 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, particulars of offences were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, complainant himself was examined as PW1 and Exts.P1 to P6 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code and he had denied all the incriminating circumstances brought against him in the complainant's evidence. The revision petitioner had further stated that he had not committed any offence. He had also filed a statement under Section 313 (5) of the Code stating that he availed a loan from the District Co-operative bank, Idukki, Uputhara where the complainant was working as a peon. In the year 2001, there was amount due to the Bank for which the bank has initiated proceedings against the revision petitioner. The complainant approached the revision petitioner and promised to settle the claim with the bank and get the loan written off by the bank and demanded Rs.15,000/- for reward for the same, for which Ext.P1 blank cheque was given as security, which was misused and the present complaint was filed. In order to prove his case, the Bank Manager was examined as DW1and Exts.D1 to D5 were marked on his side. The revision petitioner had also stated that he had not received any notice. After considering the evidence on record, the court below 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 cheque amount of Rs.1,75,000/- as compensation to the complainant with 6% interest from the date of complaint till realization, in default to undergo simple imprisonment for two months under Section 357 (3) of the Code. Aggrieved by the same, he filed Crl.A.80/2013 before the Sessions Court, Thodupuzha, which was made over to Additional Sessions Court- III, Thodupuzha for disposal and the learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction and directed to pay compensation with default sentence but reduced the substantive sentence of imprisonment till the rising of court. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below.
4. Heard both sides.
5. Since the first respondent had appeared, this Court felt that the revision can be admitted and it can be disposed of on merit. So, the revision is admitted and the matter is heard on merit and disposed of today itself.
6. The learned counsel for the revision petitioner argued that the evidence of PW1 will go to show that the person from whom the complainant said to have borrowed the amount is not having so much amount with him and further the documents produced by him will go to show that his case is more probable than the case of the complainant and the complainant had no capacity to pay the amount and so he had rebutted the presumption. Further there is no proper notice and the notice sent by the complainant was sent to some other person and not the revision petitioner as his name is not Eappen Paulose but Eappen Philipose. So according to him, the courts below were not justified in convicting the revision petitioner for the offence under Section 138 of the Act.
7. On the other hand, the learned counsel for the first respondent submitted that the evidence of PW1 will go to show that he had raised the amount from his friend who had withdrawn the amount from the bank and paid the amount. Further in the notice in stead of revision petitioner's name, father's name of the revision petitioner was wrongly added and he had no case that the notice was not served on him and is there was any person in that name in the house. So under the circumstances, the concurrent findings of the court below do not call for any interference.
8. The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs.1,75,000/- and in discharge of that liability, issued Ext.P1 cheque. The case of the revision petitioner was that there was no money transaction as claimed but he had given a blank signed cheque as security for the reward promised to be given to him if his loan was written off by the bank. In order to prove this fact, the complainant himself was examined as PW1 and he deposed that he had obtained Rs. 75,000/- from one Thomas Mathew and he was having the balance amount with him and that amount was paid to the revision petitioner. In order to disprove the case of the complainant, the revision petitioner had examined DW1, the Bank Manager and got produced Exts.D3 and D4 to show that Thomas Mathew was having a fixed deposit of Rs.50,000/- which he had withdrawn. But DW1 had stated that he did not say anywhere that the said Thomas Mathew was having or not having any other fixed deposit with the bank. Further there is no evidence to show that the said Thomas Mathew is not capable of raising further amount of Rs.25,000/- to pay Rs.75,000/- to the complainant. Further the case of the revision petitioner that he had given a blank signed cheque as security for getting some benefit which the complainant will not be able to fulfill appears to be unbelievable. So, under the circumstances, the courts below were perfectly justified in disbelieving the case of the revision petitioner that the cheque was not issued in discharge of any liability but rightly believed the evidence of PW1 and relying on the presumptions available under Sections 139 and 118 of the Act came to the conclusion that the revision petitioner had borrowed the amount and issued Ext.P1 cheque in discharge of that liability.
9. As regards the notice is concerned, it is true that notice was issued with name Eappen Paulose, but the name of the revision petitioner is Eappen Philippose. But it was spoken to PW1 that father's name of the accused is Philipose and that was wrongly mentioned in the place of Paulose. Further the accused had no case that he is residing in that address and he will not receive notice in that address. There is no evidence to prove that there is any other person by name Eappen Philipose is residing in that house. The court has verified the signature in Ext.P6 postal acknowledgment with other documents and came to the conclusion that it was obtained by the revision petitioner. So the courts below were correctly come to the conclusion that the mistake in the name is not sufficient to come to the conclusion that there was no proper service of notice and rightly come to the conclusion that the notice is proper and rejected the case of the revision petitioner. So under the circumstances courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Act and concurrent findings of the court below do not call for any interference.
10. As regards the sentence is concerned, though the trial court has imposed substantive sentence of two months and direction to pay compensation, the same was reduced to imprisonment till the rising of coauthor.
11. Further in view of the decision reported in Somnath Sarkar v. Utpal Basu Mallick (2013 (4) KLT 350(SC), the question of payment of compensation does not arise in a case under Section 138 of the Act but the court can take into account the loss caused to the complainant and in commensurate with the same, fixed the fine amount and out of the fine amount, the compensation can be directed to be paid. So the courts below were not justified in fixing the compensation with liability to pay interest for longer period of uncertainty. So this Court feels that a portion of the sentence can be modified by converting the same into fine by fixing the amount payable as Rs. Two lakhs. So the sentence is modified as follows:
The revision petitioner is sentenced to undergo imprisonment till the rising of court and also to pay a fine of Rs. Two lakhs, in default to undergo simple imprisonment for two months. If fine amount is realized, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code.
12. The counsel for the revision petitioner prayed ten months time to pay the amount. This was objected by the counsel for the 1st respondent. Considering the fact that he is an aged person, some leniency can be shown but at the same time the case is of the year 2005. So considering the circumstances, this Court feels that seven months time can be granted for payment of the amount. So the revision petitioner is granted time till 6.6.2015 to pay the amount. Till then, execution of the sentence is directed to be kept in abeyance.
With the above modification of the sentence alone, the revision petition is allowed in part.
Office is directed to communicate this order to the concerned court immediately.
cl /true copy/ Sd/-
K. RAMAKRISHNAN, JUDGE.
P.S to Judge