The revision petitioner is the accused in C.C.No.930/2005 on the file of the Judicial First Class Magistrate Court, Koyilandy, as well as unsuccessful appellant in Crl.Appeal.No.986/2007 on the files of Additional District and Sessions Court, Fast Track (Ad hoc II), Kozhikode). He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, on a complaint filed by the 1st respondent herein. After trial the learned Magistrate found the accused guilty of the said offence and convicted thereunder. He was sentenced to undergo rigorous imprisonment for one year, for the offence under Section 138, and directed to pay compensation for Rs.5,00,000/- to the 1st respondent under Section 357(3) of Cr.PC. In default of payment of compensation, he shall undergo rigorous imprisonment for a further period of 3 months. 2. Aggrieved by the conviction entered and sentence imposed on him, who he preferred above criminal appeal. After re appreciating the evidence on record, the learned Sessions Judge also concurred with the verdict of guilty, conviction and sentence thereunder. The legality, propriety and correctness of the concurrent findings of conviction and sentence are under challenge in this revision petition.
3. The 1st respondent's case is that he had prior acquaintance with the revision petitioner. During January 2005, in several occasions, the revision petitioner borrowed a total sum of Rs.5lakhs from the 1st respondent promising to repay on demand. When he demanded the said amount, the revision petitioner issued six cheques all dated 5.7.2005. The cheques when presented for collection, all the cheques were dishonored for want of sufficient funds and returned unpaid. Though he had caused to issue a lawyer's notice requiring the revision petitioner to pay the amount due under the cheques, he didn't pay the cheque amount, nor did he sent a reply denying the liability claimed under the cheques. Thus he has committed the offence punishable under Section 138 of the NI Act.
4. When the revision petitioner was questioned under Section 313 Cr.PC, he denied all the incriminating circumstances put to him and pleaded not guilty. He filed a statement that he had no personal dealings with the 1st respondent. According to him the 1st respondent was a customer in the institution in which he was working. According to him the impugned cheque leaves were entrusted to the 1st respondent by that institution, as a security, to conduct off-market business.
5. Going by the impugned judgments under challenge, it is seen that on appreciation of the evidence of PW1 coupled with the Exts.P1-P16, the trial court found that the 1st respondent had successfully discharged the initial burden of proving execution and issuance of the cheque and thereby the presumption under Section 118 and 139 of the N.I. Act would stand in favor of the 1st respondent. On a re appreciation of the said evidence, the appellate court also concurred with the said findings. Thus both courts below concurrently held that the revision petitioner had miserably failed to rebut the presumption under Section 118 and 139, which stood in favour of the 1st respondent.
6. First of all, this Court must remember that the scope and extent of jurisdiction under revisional jurisdiction is confined to legality, propriety and correctness of the findings. If there is any perversity in the appreciation of evidence, this Court can interfere with those findings. But this Court is not inclined to reappreciate entire evidence once again. Even if another view is also possible, this Court cannot substitute its own view, in the place of concurrent views, unless perversity in appreciation is apparent on the record.
7. The learned Counsel for the revision petitioner advanced 3 points before me. Firstly the learned Counsel submitted that Exts.P1,P3,P5,P7,P9, and P11 are cheque leaves of different banks bearing same date. Ext.P1 is the cheque which was drawn on UTI bank and all other cheques are cheques drawn on Federal Bank. The serial numbers of Exts.P3,P5,P7,P9 and P11 are not in the order and all these cheques are seen issued from different cheque books of the same bank. Therefore it could be reasonably presumed that the said cheques were not issued in discharge of a legally enforceable debt as alleged by the 1st respondent. Secondly the complainant has failed to prove his sources of income so as to pay a total amount of Rs.5,00,000/- with in a short period to the revision petitioner. Thirdly it is quite impossible to believe that the 1st respondent had lent such a huge amount without obtaining any kind of security. According to the learned Counsel for the revision petitioner the cumulative effect of all these points is that, the transactions as well as the issuance of the cheque as alleged by the 1st respondent is highly improbable and unbelievable.
8. Per contra, the learned Counsel for the 1st respondent advanced arguments to justify the verdict of guilty, conviction as well as the sentence imposed on the revision petitioner by the trial court and confirmed by the appellate court. According to the learned Counsel, the reason that Exts.P3,P5,P7,P9and P11 cheques are not in the order of serial numbers, is not sufficient to improbabilise the 1st respondent's case as a whole and also to unsettle the concurrent findings of the conviction and sentence. The learned Counsel drew my attention to para 12 and 13 of the trial court judgment, and contended that when the 1st respondent was examined in evidence, he was confronted with the sources of fund and he explained his sources of fund. So also the circumstances in which he lent money without obtaining security and the trial court was fully satisfied with the explanation given by the 1st respondent.
9. As I held above going by the concurrent findings, by which the court below arrived at a finding that the 1st respondent has successfully discharged his initial burden of proving execution and issuance of the cheque , I do not find any reason to unsettle the said findings, the above findings in the absence of any kind of perversity in the appreciation of evidence given by PW1 and Exts.P1 to P16. What remains to be considered is whether the court below can be justified in finding that the revision petitioner had miserably failed to rebut the presumption under section 118 and 139 of the N.I. Act. I have given my anxious consideration to three points raised by the learned counsel for the revision petitioner. It is true that going by Exts.P3,P5,P7,P9 and P11, it could be seen that these cheques are drawn on Federal bank and they bear different serial numbers and same date. The learned Counsel for the revision petitioner could not point out any kind of legal impediment or restrictions to issue such cheques in such a way, without order of the serial numbers, and with same date. Going by the complainant's case it is a specific case that during January 2005 in several occasions the accused borrowed a total amount of 5 lakhs from complainant and promising to repay on demand. Thus according to the first respondent these cheques though bear serial numbers, out of the order with same dates, it cannot be presumed that all these cheques were issued in one occasion with different serial numbers. When the borrowal was on different occasions, there is enough possibility to issue cheques from different cheque books without maintaining order of serial numbers.
Hence I reject the first point raised before me on the basis of the disorder in the serial numbers of the cheque.
10. Coming to the second point, the contention raised by the revision petitioner is that the sources of income so as to lend Rs.5 lakhs is not proved. This Court in Devan Vs. Krishna Menon (2010 (2) KLT 397) held that once the execution, signature and handing over is satisfactorily proved, the presumption comes into play and the complainant need not prove the original transaction meticulously. More over, in Rangappa Vs. Mohanan (2010 (2) KLT 682) the Apex Court held that presumption under Section 139 of the N.I. Act includes legally enforcible debt also. Therefore, in the light of the legal position well settled by the precedents, I cannot accept the second contention also.
11. Thirdly, the revision petitioner contended that it is impossible to believe that such a huge amount was given without obtaining any kind of security. It is the specific case of the 1st respondent that during the year 2005, in several occasions, the revision petitioner borrowed different amounts promising to pay back entire amount and the cheque was issued in discharge of the total amount. So there is no force in the argument that huge amount was lent without security. So I am not inclined to accept the third point also. Thus, at all points this revision petition fails and I confirm the concurrent findings of conviction entered by the courts below. There is no illegality or impropriety in any of the findings of conviction, and I do not find any perversity in the appreciation of evidence from which those findings have come.
12. Lastly, the learned counsel for the petitioner submits that the sentence imposed on the revision petitioner is too harsh and disproportionate with the nature and gravity of the offence.
13. The Supreme Court, in the decision in Kaushalya Devi Massand Vs. Roopkishore (AIR 2011 SC 2566), held that the offence under Section 138 of the N.I. Act is almost in the nature of civil wrong which has been given criminal overtone, and imposition of fine payable as compensation is sufficient to meet the ends of justice. Further, in Vijayan Vs. Baby (2011(4) KLT 355), Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic. So, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect.
14. In view of the above decision, I find that the sentence imposed on the revision petitioner is a little harsh and excessive. Therefore the sentence imposed on the revision petitioner will stand reduced and modified as given below:
i. The Revision Petitioner will stand sentenced to undergo simple imprisonment for one day till rising of the court.
ii. He shall pay a compensation of Rs.5,00,000/- (Rupees Five lakhs only) to the 1st respondent/complainant, within a period of five months from today under Section 357(3) of the Cr.P.C.
iii. The Revision Petitioner shall appear before the Trial Court to suffer the substantive sentence of simple imprisonment as ordered above on or before 5th May, 2015 with sufficient proof to show payment of compensation.
iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months.
This revision petition is allowed in part.
K.HARILAL, JUDGE VS