Accused in S.T. No.1592 of 2006 on the file of the Judicial First Class Magistrate Court, VIII Thiruvananthapuram is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant under Sec.138 of the Negotiable Instrument Act (For short, the NI Act). 2. The case of the complainant in the compliant was that the accused issued Exts.P1 and P2 cheques in discharge of her liability of the amount due as advertisement charges to the complainant which when presented were dishonoured for the reason funds insufficient as evidenced by Exts.P3 and P4 dishonour memos. The complainant issued Ext.P5 notice dated 18.09.2006 and it was returned 'unclaimed' evidenced by Ext.P6 returned notice. The accused had not paid the amount. So she had committed the offence punishable under Sec.138 of the NI Act.
3. When the accused appeared before the Court below, the particulars offence were read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P14 were marked on his side. After closure of the complainants evidence, the accused was questioned under Sec.313 of Cr.P.C. (for short, the Code) and she denied all the incriminating circumstances brought against her in the complainants evidence. She had further stated that she is not the owner and the cheque was issued from the account maintained in the name of Sri. Thyagaraja Centre and as such, there is no personal liability on her. No defence evidence was adduced on her side.
4. After considering the evidence on record, the Court below found the revision petitioner guilty under Sec.138 of the NI Act and convicted her thereunder and sentenced her to undergo simple imprisonment till rising of the Court and also to pay a compensation of Rs.1.11 lakhs with interest at the rate of 8% from 05.04.2006 till realisation under Sec.357(3) of the Code in default to undergo simple imprisonment for three months more. Aggrieved by the same, the revision petitioner filed Crl. Appl. No.792 of 2010 before the Sessions Court, Thiruvananthapuram and it was made over to the Additional Sessions Court-II, Thiruvannathapuram for disposal. But the Additional Sessions Court-II, Thiruvannathapuram allowed the appeal in part confirming the order of conviction and substantive sentence of imprisonment till rising of the Court but converted the imprisonment to fine of Rs.1.11 Lakhs with default sentence of two months simple imprisonment and directed to pay the fine if realised to the complainant as compensation under Sec.357(1) of the Code.
5. Aggrieved by the same, the present revision petition has been filed by the revision petitioner/accused before the Court below. Considering 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 2nd respondent dispensing with notice to the 1st respondent.
6. The counsel for the revision petitioner submitted that the Courts below have not properly understood the documentary as well as the oral evidence adduced in this case. No conviction under Sec.138 is attracted against the revision petitioner.
7. The learned Public Prosecutor submitted that the concurrent findings of the Court below on facts does not need any interference by this Court.
8. The case of the complainant in the complaint was that for making an advertisement for conducting a mega show, she had entrusted the same to the complainant and on that basis, advertisements were made and in that account an amount of Rs.1.11 lakhs was due and in discharge of that liability, the accused issued Exts.P1 and P2 cheques. The case of the accused is that she is not the owner of the institution which issued the cheques and as such there is no personal liability on her. But, when PW1 was examined, he had categorically stated that the accused is the proprietor of the concern and the accused had signed the cheques and issued the cheques. Except relying on the recitals in Exts.P7 and P8 letters where certain names of the persons were as patrons no other evidence was adduced on the side of the accused to prove that the concern mentioned in Exts.P7 and P8 letters is either a society or company or partnership firm as claimed by the accused. Further the documents produced by the complainant will go to show that the amounts were due towards the advertisement charges for the advertisement made on behalf of the accused. This fact is not disputed by the accused also. The issuance of the cheques and the amounts for which , the cheques were issued were also not in dispute. Further, the evidence will go to show that the notice issued was returned with endorsement 'unclaimed'. The evidence of DW1 is not convincing regarding the non receipt of notice as well. So under the circumstances, the Courts below were perfectly justified in coming to the conclusion that the accused had issued the cheques in discharge of her liability, and the notice was properly sent in the correct address which was unclaimed by the accused and there is proper notice and thereby she had committed the offence punishable under Sec.138 of the NI Act. The concurrent findings of the Court below on these aspects on facts does not call for any interference as no illegality has been committed by the Court below in appreciating the evidence.
9. As regards the sentence is concerned, though Trial Court has awarded interest on the cheque amount that was set aside by the appellate court and the compensation was converted to fine and confined to the cheque amount alone besides imprisonment till rising of Court as substantive sentence. So maximum leniency has been shown by the appellate Court also in awarding the sentence. So I do not find any reason to interfere with the same as well.
10. When the revision was about to be disposed of, learned counsel for the revision petitioner sought time for payment of the amount. Considering the amount involved, this Court feels that three months time can be granted to the revision petitioner for payment of the amount. So the revision petitioner is granted time till 17.01.2015 to pay or deposit the amount. Till then, the execution and sentence will be kept in abeyance.
With the above directions and observations, the revision petition is dismissed.
Sd/-
K. RAMAKRISHNAN JUDGE / True Copy / NS P.A. To Judge