Accused in C.C.No.986/2007 on the file of the Judicial First Class Magistrate Court, No-II, Kollam is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the first respondent herein against the revision petitioner 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 borrowed a sum of Rs.6,00,000/- on different occasions and in discharge of that liability, she had issued Ext.P1 cheque which when presented was dishonoured for the reason 'funds insufficient' evidenced by Ext.P2 dishonour memo and the same was intimated to the complainant by his banker vide Ext.P3 debit memo. The complainant issued Ext.P4 notice vide Ext.P5 postal receipt and the revision petitioner had not paid the amount. So, she 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 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 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 she denied all the incriminating circumstances brought against her in the complainant's evidence. She had further stated that, she had no transaction with the complainant and in fact, a blank signed cheque given to one Vishnu Jewellery for purchasing gold ornaments in connection with her daughter's marriage was misused and the present complaint was filed. No evidence was adduced on her side in defence.
5. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for one year and also to pay a compensation of Rs.6,25,000/- in default to undergo simple imprisonment for one year more under Section 357(3) of Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal.No.400/2009 before the Sessions Court, Kollam which was made over to Additional Sessions Court, No-III, Kollam for disposal and the learned Additional Sessions Judge, allowed the appeal in part confirming the order of conviction, but, modified the sentence to imprisonment till rising of court and direction to pay compensation of Rs.6,00,000/- in default to undergo simple imprisonment for six months under Section 357(3) of Code of Criminal Procedure. Aggrieved by the same, the present revision has been filed by the revision petitioner – accused before the court below.
6. Heard both sides.
7. The Counsel for the revision petitioner submitted that there is nothing mentioned in the complaint regarding the transaction and the notice has not been properly served and mere production of postal receipt and copy of the notice is not sufficient to prove service of notice. The learned Counsel has relied on the decision reported in Vijayakumar Vs. Ramachandran Nair [2013 (1) KLT 37]. The learned Counsel also argued that the burden on the complainant to prove the transaction has not been discharged and as such, courts below were not justified in convicting the revision petitioner for the offence alleged and the sentence imposed is also harsh and the case of the complainant that there were previous transaction by which the loan was obtained and in discharge of that liability, promissory notes were executed and thereafter, the disputed cheque was given. But, no evidence has been adduced to prove these aspects. So, according to the learned Counsel, the courts below were not justified in convicting the revision petitioner for the offence alleged.
8. On the other hand, the learned Counsel for the first respondent submitted that except suggestions given, no other evidence was adduced on the side of the revision petitioner to rebut the presumption under Section 139 of the Act. Further, the case of the revision petitioner was that the cheque was given to one Siva Prasad, the owner of the Vishnu Jewellery which she gave as security for payment of the amount due for purchase of gold ornaments in connection with her daughter's marriage and though the amount was paid, the cheque was not returned, but, she had not taken any steps to get back the cheque or any complaint against misuse of the cheque against that person. Further, she had no case that the notice will not be received in that address and the address shown in the notice is not correct. So, under such circumstances, it can only be presumed that the notice was served on her. According to the learned Counsel, the courts below have considered these aspects and concurrent findings of the court below do not call for any interference.
9. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.6,00,000/- on three occasions and in discharge of that liability, she had issued Ext.P1 cheque. But, the case of the revision petitioner was one of total denial. Her case was that, she had no transaction with the complainant and in fact, she had purchased gold ornaments from one Vishnu Jewellery owned by one Siva Prasad on credit in connection with her daughter's marriage and she had given a blank signed cheque as security and though she paid the amount, the cheque was not returned and misusing the cheque that the present complaint has been filed. Once the execution of the cheque and transaction is denied, the burden is on the complainant to prove those aspects.
10. Further, in the decision reported in Damodar S. Prabhu Vs. Sayed Babalal H. [JT 2010 (4) SC 457] and Somnath Sarkar Vs. Utpal Basu Mallick [2013(4) KLT 350 (SC)], the Honourable Supreme Court has held that the statutory presumption is not only available on the aspect that the cheque was issued in discharge of a legally enforceable debt, but, in respect of the existence of debt also. But, it is a rebuttable presumption and such a defence can be taken by the accused and if such a defence is taken, it must be proved by the accused. It is also settled law that mere suggestions or denial of issuance of cheque alone is not sufficient to come to the conclusion that there was no transaction and it must be proved by the revision petitioner by cogent evidence. It is not necessary that the revision petitioner has to prove the same beyond reasonable doubt, but, it must be proved by preponderance of probabilities as the burden is not as heavy as in the case of complainant proving the case beyond reasonable doubt. It is also settled law that it is not necessary that the accused in all cases must adduce independent evidence to prove this fact and the accused can rely on the weakness of the complainant's evidence to prove her case.
11. In this case, the complainant was examined as PW1 and he had deposed that he knew the husband of the revision petitioner as they were working together in Gulf and it was on that acquaintance, he had paid amounts on three occasions namely, Rs.2,00,000/-, Rs.1,00,000/- and Rs.3,00,000/- respectively by executing a promissory note and thereafter, when she did not pay the amount, and when demanded the amount, she had executed Ext.P1 cheque. Though he was cross examined at length, nothing was brought out to discredit this aspect. Further, the revision petitioner had no case that the complainant had no capacity to pay the amount as well. Further, the case of the revision petitioner was that, she had given a blank signed cheque to one Siva Prasad, the owner of Vishnu Jewellery from whom she purchased gold ornaments on credit in connection with her daughter's marriage and though the amount was paid, the cheque was not returned. But, she had not taken any steps against the said Siva Prasad for getting back her cheque after the purpose for which it was given as security. She did not even raise her finger either against the complainant or the said Siva Prasad for misusing her cheque as well. So, under the circumstances, courts below were perfectly justified in coming to the conclusion that the complainant had proved that the revision petitioner had borrowed Rs.6,00,000/- and in discharge of that liability, she had issued Ext.P1 cheque in his favour.
12. As regards the service of notice is concerned, PW1 had categorically stated that the notice was issued in the correct address by registered post which is evident from Ext.P4 and P5. The revision petitioner had no case that she will not receive notice in that address. So, merely because postal acknowledgment was not produced is not a ground to come to a conclusion that there was no service of notice. Section 27 of the General Clauses Act gives the presumption that if a postal article has been sent in the correct address in which it will be normally served by Registered Post and even if the acknowledgment is not received or the postal article does not return, then, there is a presumption unless the contrary is proved that it was served on the addressee. In this case, no such evidence was adduced on the side of the revision petitioner to prove that she will not receive notice in that address and she had not received the notice also.
13. Further, the dictum laid down in the decision reported in Vijayakumar Vs. Ramachandran Nair [2013 (1) KLT 37] is not applicable to the facts of the case. That was a case where there was evidence to show that the notice was not served and the accused was examined in that case to show that it will not be served on her and documents were also produced to prove that the address is not proper. Further, the lower court had on evidence accepted the case of the accused and acquitted the accused. It was against that the Crl.Appeal was filed and while appreciating the case, this court has observed that unless the reason given by the court below is perverse, the court will not normally interfere the order of acquittal passed by the court below and it was under such circumstances, this court has come to the conclusion that mere production of postal receipt alone is not sufficient to prove service of notice. That was not the case in this case. So, under the circumstances, courts below were perfectly justified in coming to the conclusion that there was proper service of notice and it can be presumed that it was properly served in the absence of any evidence adduced on the side of the revision petitioner in this regard. So, under the circumstances, 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 court below do not call for any interference.
14. As regards the sentence is concerned, the trial court had sentenced the revision petitioner to undergo simple imprisonment for one year and also to pay Rs.6,25,000/- as compensation in default to undergo simple imprisonment for another one year under Section 357(3) of Code of Criminal Procedure. But, the appellate court had modified the sentence by reducing the substantive sentence to imprisonment till rising of court and also the compensation amount to Rs.6,00,000/- and default sentence to six months. Maximum leniency has been shown by the appellate court in imposing the sentence which cannot be said to be excessive which warrants the interference on sentence by this court.
15. While this court was about to dispose of the case, the learned Counsel for the revision petitioner sought ten months time for payment of the amount. This was strongly opposed by the Counsel for the first respondent on the ground that the case is of the year 2002. Considering the fact that the amount involved is Rs.6,00,000/- and the revision petitioner is a lady, it is also true that, the transaction was of the year 2002 and no amount has been paid so far, however, this court feels that, some leniency has to be shown, considering the fact that the revision petitioner is a lady in respect of granting time. So, considering these aspects, this court feels that eight months time can be granted to the revision petitioner to pay the amount. So, revision petitioner is granted time till 15.08.2015 to pay the amount. Till then, the execution of sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and produces proof of such payment and if the complainant appears before the court below and acknowledges the same, then, the lower court is directed to treat the same as substantial compliance of payment of compensation out of fine and record the same in the respective registers as observed in the decisions reported in Beena Vs. Balakrishnan Nair and Another [2010 (2) KLT 1017] and Sivankutty Vs. John Thomas and Another [2012 (4) KLT 21] and permit the revision petitioner to serve the substantive sentence of imprisonment till rising of court.
With the above direction and observation, the revision petition is dismissed.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge