Accused in C.C.No.439/2002 on the file of Judicial First Class Magistrate Court-V, Thiruvananthapuram, is the revision petitioner herein. The case was taken on file, on the basis of a private complaint filed by the first respondent/complainant herein, against the revision 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, revision petitioner borrowed a sum of ₹2,30,000/-
from the complainant and in discharge of that liability, he had issued Ext.P1 cheque. The cheque when presented was dishonoured for the reasons ‘funds insufficient’, and that was intimated to the complainant, which was evidenced by Ext.P2 series dishonour memo. The complainant issued Ext.P3 series notices and that was received by the revision petitioner. He had also sent a notice, correcting the mistake in the earlier notice, that was produced and marked as Ext.D4 by the revision petitioner. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments 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 P2 series, P3 series and P3(a) were marked on his side. After closure of the complainant's 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 not borrowed the amount as mentioned in the complaint, but he had borrowed a sum of ₹1,00,000/-, earlier from the complainant and executed a promissory note, but thereafter that promissory note was renewed and he had paid the amount in 24 instalments of ₹5,000/- each. The complainant had not returned the cheque. He had issued a blank cheque as security for the earlier transaction. So he had not committed any offence. In order to prove his case, the accused himself was examined as DW1 and one witness was examined as DW2 and Exts.D1 to D5 and D1(a) were marked on his side. After considering the evidence on record, the court below found that, the case of the revision petitioner/accused is not believable and the complainant had proved his case and convicted the revision petitioner for the offence under Section 138 of the Act and sentenced him to undergo simple imprisonment for one year and also to pay the cheque amount of ₹2,30,000/-, as compensation, in default to undergo simple imprisonment for three months more. Aggrieved by the same, the revision petitioner filed Criminal Appeal No.496/2003 before the Sessions Court, Thiruvananthapuram, which was made over to the 2nd Additional Sessions Court, Thiruvananthapuram, for disposal and the learned Additional Sessions Judge by impugned judgment allowed the appeal in part, confirming the order of conviction, and compensation with default sentence, but reduced the substantive sentence of imprisonment to till rising of the court. Dissatisfied with the same, the present revision has been filed by the revision petitioner/accused before the court below.
4. The counsel for the revision petitioner submitted that, the revision petitioner is no more and though he contacted the legal heirs, they did not come to join the revision and proceed with the case. But however, he prepared to argue the case on merit, as the revision cannot be dismissed as abated.
5. Heard the counsel for the revision petitioner, counsel for the first respondent and Public Prosecutor.
6. The counsel for the revision petitioner submitted that, courts below have not properly appreciated the evidence oral as well as documentary adduced by him. He had in fact produced the copies of the promissory note said to have been executed by him and he filed an application to produce the original promissory note by the complainant, but the court below had dismissed the application. The evidence of DWs1 and 2 will go to show that, the case of the complainant is not probable. Further the court below had not relied on Ext.P3(a) endorsement, but on the other hand, relied on Ext.D3(a) endorsement that the present cheque has been given and thereby the revision petitioner had admitted the transaction. So the court below was not justified in convicting him and he is entitled to get acquittal.
7. On the other hand, the counsel for the first respondent submitted that, the execution of promissory note etc., were not admitted by the complainant and those documents were marked subject to objection as they were photostat copies. Further even the evidence of the revision petitioner will go to show that, there were money transaction between the complainant and the revision petitioner and the amount borrowed was not paid. Further, Ext.D1 letter send by the revision petitioner will go to show that, he wanted the revision petitioner to pay the amount due from him and that was a later document, which was sent by the complainant after the alleged promissory note theory put forward by the revision petitioner. If really the promissory note was executed and the amount was borrowed as mentioned in the promissory note and the cheque was given as security for that transaction, then there was no necessity for him to issue a letter like Ext.D1 to the revision petitioner. Further he had not proved the discharge claimed by him. Under the circumstances, the courts below were perfectly justified in disbelieving the case of the revision petitioner and rightly convicted him for the said offence and the concurrent findings of the court on this aspect do not call for any interference. Learned Public Prosecutor also in support of the submissions made by the counsel for the first respondent.
8. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of ₹2,30,000/-
from the complainant and in discharge of that liability, he had issued Ext.P1 cheque. The case of the revision petitioner was that, he had not borrowed ₹2,30,000/-, but he had borrowed an amount of ₹1,00,000/- in the year 1997 and a promissory note was executed and thereafter it was renewed at the request of the revision petitioner and he had paid the amount at the rate of ₹5,000/- per month in 24 monthly instalments and thereby no amount is due. It is true that, in a case where revision petitioner had denied the transaction, then burden is on the complainant to prove the same.
9. As regards the documents produced by the revision petitioner are concerned, none of the documents are original documents, they are only photostat copies. The revision petitioner had filed the application calling upon the complainant to produce the original of Ext.D3 promissory note and Ext.D1 promissory note, but he had filed a statement stating that, there was no such promissory note and such promissory note is not executed. So the court below had dismissed the application, as the complainant cannot be called upon to produce the document, which is not admitted by him. Further, the marking of Exts.D1 and D3 were objected by the counsel for the complainant and so it has to be proved by further evidence. But when DW2, one of the witness examined on the side of the revision petitioner to prove the transaction, he had only stated that, a promissory note was executed and he signed as a witness and a blank signed cheque was given and the amount was repaid by the accused, but he had no direct knowledge about the payment of the amount as claimed. Further, the alleged Ext.D3 promissory note was not put to him, though he was shown as a witness in the document, which would have been the best opportunity to prove the execution of Ext.D3 promissory note, as a secondary evidence by the revision petitioner, but that was not done. Further when a court question was put to him, as to whether Ext.P1 is the alleged blank signed cheque given, he had stated that, he cannot say the same. He also stated that, he did not know whether mere blank cheque was given or blank signed cheque was given. So under the circumstances, the court below was perfectly justified in not relying the evidence of DW2, so as to come to the conclusion that, the accused had rebutted the presumption available under Section 139 of the Act.
10. As regards the evidence of the accused is concerned, he is not an ordinary person. He is conducting a business concern and the cheque contained the seal of the business concern also. He must be knowing about the consequences of issuing the cheque. If really the cheque was given as additional security as claimed by him in an earlier transaction covered by the alleged Ext.D3 promissory note, when he had repaid the amount, he would have brought back the cheque. Further he did not inform the bank that, the cheque if presented later should not be honoured as well. But at the time when he was examined before the court, he had denying the signature in Ext.P1. A perusal of the admitted signatures in the court and the postal acknowledgment Ext.P3(b) and his 313 examination will go to show that he has a tendency to change his signature every now and then. Even in the admitted receipt of notice, in the acknowledgment, he had singed by showing his name as merely Mohan, whereas in other cases he had signed as Vasantha Mohan, with some differences in each signatures also. So all these things will go to show that, he is trying to change his signature from time and again to make it appear that the signature of Ext.P1 was not his signature. Further the cheque was not returned by the bank, for the reason signature differs as well. PW1 had categorically stated that, the revision petitioner had brought the cheque and singed the cheque in his presence and handed over the same. He had no case that the writings in the cheque were that of the revision petitioner. The revision petitioner had not taken any steps to prove that the signature in Ext.P1 was not his signature as well. Though he had produced a postal acknowledgment to show that he had sent a reply, he did not produce the copy of the reply notice. According to him, the reply notice was not given to him by the advocate, but he did not examined the advocate to issue the notice to prove that fact as well. So the conduct of the revision petitioner will go to show that, this case is not believable. There is nothing brought out to discredit the evidence of PW1, except giving suggestions that, there was no such transaction and the blank cheque given was mis-used and no other circumstances to discredit his evidence has been brought out. 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 believing the evidence of PW1, came to the conclusion that the revision petitioner had borrowed the amount and issued the cheque in discharge of that liability. The revision petitioner had no case that he had paid the amount after receipt of the notice as well. So, 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 facts do not call for any interference.
11. As regards the sentence is concerned, court below had sentenced him to undergo imprisonment for one year and also to pay the cheque amount as compensation under Section 357(3) of the Code of Criminal Procedure with default sentence of three months simple imprisonment, but the appellate court had reduced the substantive sentence to imprisonment till rising of the court. Since the revision petitioner is no more, there is no question of enforcing the substantive sentence of imprisonment, till rising of the court arises.
12. As regards the compensation is also concerned, the amount cannot be realised from the legal heirs directly, but it can be realised from the properties, if any left by the revision petitioner and if it is in the hands of the legal heirs and the amount if any deposited, by the revision petitioner in compliance of the direction by the court to suspend the sentence that can be paid to the complainant by the court below.
With the above observation and direction, the revision petition is dismissed.
Sd/-
K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss