Accused in S.T.No.766/07 on the file of the Judicial First Class Magistrate Court, Adimaly is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the first respondent 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.50,000/- and issued Ext.P1 cheque in discharge of that liability which when presented was dishonoured for the reason 'funds insufficient' vide Ext.P2 dishonour memo and that was intimated to the complainant by his banker vide Ext.P3 memo. The complainant issued Ext.P4 lawyer notice vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. He had sent Ext.P7 reply with false allegations. He had 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 offences 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 P7 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 he had no transaction with the complainant and he was having some business transaction with one Salim and as security for the business transaction, a blank signed cheque was given to Salim which was misused and the present complaint was filed. No evidence was adduced on his side in defence.
5. After considering the evidence on record, the learned magistrate 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.50,000/- as compensation in default to undergo simple imprisonment for three months more under Section 357(3) of Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal.No.253/09 before the Sessions Court, Thodupuzha which was made over to Additional Sessions Court, (Adhoc-II), Thodupuzha for disposal and the learned Additional Sessions Judge by the impugned judgment allowed the appeal in part confirming the order of conviction and direction to pay compensation with default sentence, but, modified the substantive sentence to imprisonment till rising of court. Aggrieved by the same, the present revision has been filed by the revision petitioner – accused before the court below.
6. Since the first respondent appeared 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 today itself after hearing both sides on merit. So, the revision is admitted and both sides were heard and disposed today.
7. The Counsel for the revision petitioner submitted that he had sent Ext.P7 reply immediately stating that, there was no transaction and except the interested testimony of PW1, there is no other evidence adduced on the side of the complainant to prove his case. So, he had rebutted the presumption and the courts below were not justified in convicting the revision petitioner for the offence under Section 138 of the Act.
8. On the other hand, the Counsel appearing for the first respondent submitted that, except sending a reply and taking a defence that there is no transaction, he had not adduced any evidence to prove that the cheque given to Salim was misused. So, under the circumstances, courts below were perfectly justified in convicting the revision petitioner for the offence alleged.
9. The learned Public Prosecutor also supported the submissions of the first respondent.
10. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of Rs.50,000/- 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, there was no transaction between the complainant and himself and the blank signed cheque given to one Salim in connection with the hill produce business transaction was misused and the complaint was filed.
11. 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 this aspect. Except taking a defence that the cheque given to Salim was misused and the complaint was filed, the revision petitioner had not taken any steps to prove that fact. He did not take any action against Salim or the complainant for misusing his cheque. It is settled law that mere denial of the transaction or mere denial of issuance of the cheque for defence sake alone is not sufficient to rebut the presumption under Section 139 of the Act. In the absence of any evidence adduced on the side of the revision petitioner to prove his case, the courts below were perfectly justified in relying on the evidence of PW1 and the statutory presumptions available under Sections 139 and 118 of the Act for coming to the conclusion that, the complainant had proved his case and convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below on fact on this aspect do not call for any interference.
12. As regards the sentence is concerned, the trial court had sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay the cheque amount of Rs.50,000/- as compensation to the complainant in default to undergo simple imprisonment for three months under Section 357(3) of Code of Criminal Procedure. But, the appellate court had though confirmed the direction to pay compensation with default sentence under Section 357(3) of Code of Criminal Procedure, modified the substantive sentence by reducing the same to imprisonment till rising of court. So, maximum leniency has been shown by the appellate court in awarding the sentence as well. I don't find any reason to interfere with the sentence imposed also as it appears to be just and proper.
13. While this court was about to dispose of the revision, the Counsel for the revision petitioner prays six months time for payment of the amount. But, considering the quantum of amount involved and also considering the fact that the case is of the year 2007, this court feels that, the time asked for appears to be on the higher side. But, however, taking a lenient view, this court feels that some time can be granted. So, the revision petitioner is granted time till 06.04.2015 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 before the court below and the complainant appears before the court below and acknowledges the same, then, the trial court is directed to treat the same as substantial compliance of the directions given by the courts below and confirmed by this court and record the same in the respective registers as provided 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 undergo 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