Accused in C.C.No.585/2003 on the file of the Judicial First Class Magistrate Court, Taliparamba is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the complainant - first respondent herein 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.20,000/- in discharge of that liability, he had issued Ext.P1 cheque which when presented was dishonoured for the reason 'funds insufficient' evidenced by Ext.P2 dishonour memo and this was intimated to the complainant by his banker Ext.P3 intimation letter. The complainant issued Ext.P4 notice on the same day vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal 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 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 P6 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 there was no transaction between the complainant and the revision petitioner and in fact, the cheque was entrusted to one Soubhagya Finance at Taliparamba at the time when he borrowed some amount. Misusing the cheque, the present complaint was filed. But, no evidence was adduced on his 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 him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay the cheque amount of Rs.20,000/- as compensation in default to undergo simple imprisonment for two months more and it is further ordered that if the compensation amount is realised, the same be paid to the complainant. Dissatisfied with the same, he filed Crl.Appeal.No.565/2005 before the Sessions Court, Thalassery which was made over to Additional Sessions Court, Adhoc-I, Thalassery for disposal and the learned Additional Sessions Judge by the impugned judgment, 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.
6. Since the first respondent appeared through Counsel in the delay condonation application and expressed his willingness to appear in the revision also, this court felt that the revision can be admitted and disposed of on merit after hearing both sides today itself. So, the revision is admitted and heard and disposed of today.
7. The Counsel for the revision petitioner submitted that the evidence of PW1 is not sufficient to prove the execution of the cheque as he had denied the same and courts below were not justified in convicting the revision petitioner for the offence alleged. Further, the sentence imposed is harsh.
8. On the other hand, the Counsel for the first respondent submitted that the concurrent findings of the court below do not call for any interference as no rebuttal evidence was adduced on the side of the revision petitioner to rebut the presumption available under Section 139 of the Act.
9. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.20,000/- and in discharge of that liability, he had issued Ext.P1 cheque. The case of the revision petitioner was one of total denial. His case was that he had given Ext.P1 cheque as security to Soubhagya finance, Taliparamba and that cheque was misused and the present complaint was filed. In order to prove the case of the complainant, the complainant himself was examined as PW1 and he deposed in support of his case in the complaint. Though he was cross examined at length, nothing was brought out to discredit his evidence regarding the factum of the revision petitioner borrowing the amount and issuing Ext.P1 cheque in discharge of that liability. The revision petitioner also did not send any reply to the notice issued by the complainant when the cheque was dishonoured. Further, no evidence was adduced on the side of the revision petitioner to prove his case as well. So, under the circumstances and in the absence of any evidence adduced on the side of the revision petitioner to rebut the presumption under Section 139 of the Act, courts below were perfectly justified in relying on the evidence of PW1 and convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below on this aspect do not call for any interference.
10. As regards the sentence is concerned, the court below had sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay the cheque amount of Rs.20,000/- as compensation in default to undergo simple imprisonment for two months. It is further ordered that if the compensation amount is realised, the same be paid to the complainant. This was confirmed by the appellate court.
11. In the decision reported in Damodar S. Prabhu Vs. Sayed Babalal H. [JT 2010 (4) SC 457] and Kaushalya Devi Massand Vs. Roopkishore [AIR 2011 SC 2566], the Hon'ble Supreme Court has held that the offence under Section 138 of the Act is primarily civil in nature, but, criminal colour has been given by incorporating the same in the Negotiable Instruments Act. Further, the the intention of the legislature is not to send the drawer of the cheque in jail but, make him to pay the amount. Further, in the decision reported in Somnath Sarkar Vs. Utpal Basu Mallick [2013 (4) KLT 350 (SC)], the Hon'ble Supreme Court has held that the court has no power to award compensation in a case under Section 138 of the Negotiable Instruments Act, but, at the same time, the court has got power to impose double the cheque amount as fine and if the fine is quantified, compensation can be awarded out of the fine amount invoking the power under Section 357(1)(b) of Code of Criminal Procedure. So, the substantive sentence can be reduced to till rising of the court and the fine can be fixed as Rs.35,000/- with default sentence of three months simple imprisonment and if the fine amount is realised, the same can be directed to be paid to the complainant as compensation which will meet the ends of justice. So, the 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 fine of Rs.35,000/- in default to undergo simple imprisonment for three months. If the fine amount is realised, the same be directed to be paid to the complainant as compensation under Section 357(1) (b) of Code of Criminal Procedure. Three months time is granted to the revision petitioner to pay the amount. So, the revision petitioner is granted time till 19.03.2015 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 petition 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