Accused in S.T.No.1263/1997 on the file of the Judicial First Class Magistrate Court, Mannarkkad is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the first respondent alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').
3. The case of the complainant in the complaint was that the revision petitioner obtained a sum of Rs.40,000/- agreeing to arrange for a visa and since he could not get the visa, he paid Rs.25,000/- and for the balance, he had issued Ext.P1 cheque which when presented was dishonoured for the reason 'funds insufficient' evidenced by Ext.P2 series dishonour memos. He sent Ext.P3(a) notice vide Ext.P3(b) postal receipt and the same were received by the revision petitioner evidenced by Ext.P3(c) acknowledgment. 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 pleaded not guilty. In order to prove the case of the complainant, the complainant was examined as PW1 and three witnesses were examined as PWs 2 to 4 and Exts.P1 to P5 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 he had not issued the cheque and he had not received any notice. But, he had not adduced any evidence to prove his case. So, the court below, after considering the evidence on record, found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay the cheque amount Rs.15,000/- as compensation to the complainant under Section 357(3) of Code of Criminal Procedure. The revision petitioner filed Crl.Appeal.No.158/2000 before the Sessions Court, Palakkad which was made over to Additional Sessions Court, Fast Track No-1, Palakkad for disposal and the learned Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed by the court below. Aggrieved by the same, the present revision has been filed by the revision petitioner – accused before the court below.
6. It is seen from the records that, though notice was issued to the first respondent, it was not served stating that he was not available. Considering the nature and scope of enquiry and contentions raised, this court felt that the revision can be disposed of after hearing the Counsel for the revision petitioner and the learned Public Prosecutor dispensing with notice to the first respondent.
7. The Counsel for the revision petitioner submitted that the courts below have not correctly appreciated the evidence and there was no proper service of notice and execution of the cheque has not been proved. So, he prayed for acquittal.
8. On the other hand, the learned Public Prosecutor submitted that the courts below have correctly considered the evidence and rightly convicted him and no interference is called for.
9. The case of the complainant in the complaint was that revision petitioner obtained Rs.40,000/- from him agreeing to arrange a visa and since he could not fulfill the same, when the amount was demanded, he paid Rs.25,000/- cash and issued Ext.P1 cheque in discharge of the balance amount. The revision petitioner had no explanation as to how his cheque had reached in the hands of the complainant. Further, his case was that he had not received any notice. But, in order to prove the service of notice, PW3 – the postman was examined and he had stated that he knew the revision petitioner for the past 30 years and the signature in Ext.P3 was that of the revision petitioner. Further, PWs 2 and 4 were examined to prove the transaction and also to prove Ext.P4 and P5 the ledger extracts and cheque return register. The revision petitioner had not sent any reply to the notice issued. He did not adduce any evidence to prove as to how his cheque has reached in the hands of the complainant. He did not dispute even the signature in the cheque. So, under the circumstances, courts below were perfectly justified in coming to the conclusion that the case of the revision petitioner is not believable and complainant had proved his case that the cheque was issued in discharge of a legally enforceable debt and he had committed the offence punishable under Section 138 of the Act and rightly convicted him for the said offence. So, the concurrent findings of the court below on this aspect do no call for any interference.
10. Regarding the sentence is concerned, the trial court sentenced him to undergo simple imprisonment for three months and also to pay the cheque amount of Rs.15,000/- as compensation under Section 357(3) of Code of Criminal Procedure and this was confirmed by the appellate court. It is consistently held by the Hon'ble Supreme Court that the offences under Section 138 of Negotiable Instruments Act are pre-dominantly of civil nature, but, a criminal colour has been given for the purpose of making it as a criminal offence by incorporating this Section in the Negotiable Instruments Act. Further, the intention of the legislature is to get the amount from the drawer and pay the same to the payee or holder in due course of the cheque and not to send the drawer to the jail. Having awarded the cheque amount as compensation, this court feels that the substantive sentence can be reduced to imprisonment till rising of court and that can be converted to default sentence for non payment of the compensation and that will meet the ends of justice. So, the substantive sentence imposed by the court below is set aside and the same is modified as follows:
The revision petitioner is sentenced to undergo imprisonment till rising of court and also to pay a compensation of Rs.15,000/- in default to undergo simple imprisonment for three months under Section 357(3) of Code of Criminal Procedure. Three months time is granted to the revision petitioner to pay the amount. Till then, the execution of sentence is directed to be kept in abeyance.
With the above modification of the sentence alone, the revision is allowed in part and disposed of accordingly.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge