The accused in C.C.No.51/2009 on the file of the Judicial First Class Magistrate Court, Kalpetta is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent bank against the revision petitioner alleging commission of the offence 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 revision petitioner had availed a loan from the bank and an amount of Rs.80,594/- was due and in discharge of that liability, he had issued Ext.P1 cheque which when presented was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo which was intimated to the complainant vide Ext.P3 intimation letter. They issued issued Ext.P4 notice vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. But 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 offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the Manager of the complainant bank was examined as PW1 and Exts.P1 to P6 were marked on their side. The revision petitioner was dispensed with notice as he was exempted from personal appearance. Though he had undertaken to file defence statement, no statement has been filed as provided under Section 313 (5) of the Code. No evidence was adduced on his side in defence. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act, convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay fine of Rs.81,000/-, in default to undergo simple imprisonment for three months more. Aggrieved by the same, the revision petitioner filed Crl.A.No.11/2010 before the Sessions Court, Wayanad and the learned 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.
4. Considering the scope of enquiry and also considering the fact that he had paid the amount to the bank, 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 second respondent dispensing with notice to the first respondent.
5. The counsel for the revision petitioner submitted that a blank signed cheque given at the time of availing loan was misused but that aspect was not properly appreciated and the sentence imposed is also harsh.
6. The learned Public Prosecutor supported the concurrent findings of the court below.
7. The case of the complainant in the complaint was that the revision petitioner availed a loan and in discharge of the balance amount of Rs.80,594/-, he had issued Ext.P1 cheque, which when presented was dishonoured for the reason fund insufficient. In order to prove the case of the complainant, the Manager of the complainant bank was examined as PW1 and he proved the case of the complainant. He denied the suggestion that blank signed cheque given as security was misused. No evidence was adduced by the revision petitioner to prove his case. He did not send any reply to the notice issued as well. All these things will go to show that the case of the revision petitioner is not at all believable. So, the courts below were perfectly justified in convicting the revision petitioner/accused for the offence under Section 138 of the Act and the concurrent finding of the court below do not call for any interference.
8. As regards the sentence is concerned, the court below has sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay fine of Rs.81,000/-, in default to undergo simple imprisonment for three months. If fine is realized, the same be given to the complainant as compensation under Section 357(1)(b) of the Code. This was confirmed by the appellate court. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H. (JT 2010 (4) SC 457), the Hon'ble Supreme Court has held that cases under Section 138 are basically of civil in nature but criminal colour has been given to it by incorporating the same in the Act and the intention of the legislature was to make the drawer of the cheque to pay the amount and not to send him to jail. The same view has been reiterated in the decision reported in Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC 2566). So in view of the above dictum, since the court below has imposed more than the cheque amount as fine, the substantive sentence of three months imprisonment imposed by the court below appears to be excessive. Further, the petitioner had produced a document to show that the entire amount covered by the cheque has been paid. However, I am not going into the genuineness of the documents produced. Considering this aspect, this Court feels that the substantive sentence imposed by the court below can be set aside and the same can be reduced to imprisonment till the rising of court while confirming the sentence of fine with default sentence and to pay the fine amount to the complainant as compensation under Section 357(1)(b) of the Code. So, the sentence is modified as follows:
The revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay fine of Rs.81,000/-, in default to undergo simple imprisonment for three months. If the amount is realized, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code. If the revision petitioner had paid the amount directly to the complainant either after filing of the revision or prior to the filing of the revision and produces proof of payment of the same and representative of the complainant bank appears before the court below and acknowledges receipt of the same, then the court below is directed to treat the same as substantial compliance of the payment of compensation out of fine as directed by the court below and confirmed by this Court and record the same in the respective registers as provided in Beena v. Balakrishnan Nair & another (2010 (2) KHC 851) and Sivankutty v. John Thomas & another (2012 (4) KLT 21) and permit the revision petitioner to serve the substantive sentence of imprisonment till the rising of court imposed by this Court. The revision petitioner is granted one month time to comply with the directions and appear before the court below and to satisfy the court below regarding the payment of amount. Till then, execution of the sentence is directed to be kept in abeyance.
Office is directed to return Annexure-A1 produced by the revision petitioner before this Court to the revision petitioner on getting necessary acknowledgment and and keep the attested copy in the file.
With the modification of the sentence, the revision petition is allowed in part and disposed of accordingly.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge