Accused in S.T.No.3536/08 on the file of the Judicial First Class Magistrate Court, Ottapalam 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 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 owed an amount of Rs.3,00,000/- to the complainant and discharge of that liability, he had issued Ext.P1 to P3 cheques for Rs.50,000/- with date 15.06.2008, Rs.1,50,000/- with date 30.06.2008 and Rs.1,00,000 with date 15.07.2008 in favour of the complainant drawn on Federal Bank Ltd., Ottapalam. The cheques when presented were dishonoured for the reason 'funds insufficient' vide Ext.P4(series) dishonour memos and the complainant issued Ext.P5 notice dated 05.09.2008 on the same day vide Ext.P5(a) postal receipt and also by certificate of posting evidenced by Ext.P5(b) and they were returned 'unclaimed' evidenced by Ext.P6. 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 offences were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant herself was examined as PW1 and Exts.P1 to P4(series), P5(series), P6, P7 (series), P8 and P9 were marked on her 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 is no liability as claimed by the complainant. In fact, he had purchased some timber from the complainant for the purpose of doing some house hold work and for that, as security, some blank signed cheques were obtained and though the work was completed, the cheques were not returned and at the instigation of the brother in law of the complainant, the present complaint has been filed. Except marking Exts.D1 to D3, no other evidence was adduced on the side of the revision petitioner.
5. After considering the evidence on record, the court below rejected the contentions of the revision petitioner and accepted the case of the complainant and 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.3,00,000/- as compensation to the complainant 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.415/13 before the Sessions Court, Palakkad 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, reduced the substantive sentence to imprisonment till rising of court. Dissatisfied with the same, the present revision has been filed by the revision petitioner – accused before the court below.
6. Since the respondent appeared through Counsel and the sentence has already been suspended by this court while issuing notice on admission, this court felt that the revision can be admitted and heard and disposed of today itself on merit. So, the revision is admitted and heard and disposed of today itself.
7. The Counsel for the revision petitioner submitted that, in the complaint, nothing has been mentioned as to how the liability occurred for which the cheques were issued. She did not mention anything about Ext.D1 agreement as well and this was admitted by PW1 when she was in the box that certain timber was entrusted to him for the purpose of making some articles. In fact, as a security for the same, the cheques were issued. Though the work was completed, the cheques were not returned. Further, his actual name is Manoj Menon K.M and not Manoj K Menon. So, notice was not properly served. He had rebutted the presumption and the court below was not justified in convicting the revision petitioner for the offence alleged.
8. On the other hand, the learned Counsel appearing for the first respondent submitted that Ext.P7(series) cheques will go to show that the cheques obtained were encashed by the revision petitioner and Ext.P9 Note Book will go to show that the construction of the house was entrusted to the revision petitioner and there were amounts due in that transaction and in discharge of that liability that the cheques were issued. Further, Ext.D1 was a concocted document and a blank signed paper obtained for doing certain things in connection with construction work has been misused and the present receipt has been prepared. So, courts below were perfectly justified in convicting the revision petitioner for the offence alleged.
9. The case of the complainant in the complaint was that revision petitioner owed an amount of Rs.3,00,000/- and in discharge of that liability, he had issued Ext.P1 to P3 cheques in favour of the complainant. The case of the revision petitioner was one of total denial. According to him, he had obtained certain timber from the complainant for the purpose of making certain furniture and as a security for the same, some blank signed cheques were obtained which is evident from Ext.D1 and misusing the cheques, the complaint was filed. It is true, if the accused had denied the execution of the cheque and the transaction, the burden is on the complainant to prove these facts so as to attract the presumption under Section 139 and 118 of the Act. Once that is proved by the complainant, then, the accused has to rebut the same by adducing independent evidence or relying on the evidence of the complainant to disprove the case of the complainant. In this case, in order to prove the case of the complainant, the complainant herself was examined as PW1 and she had deposed that the construction work was entrusted to the revision petitioner and in connection with the construction work, he had obtained several amounts from her and when the account was settled, Rs.3,00,000/- was found due from him for which, he had issued the cheques. It is true that this was not mentioned in the complaint. That is not fatal in a proceedings under Section 138 of the Act. It is true that she had admitted her signature in Ext.D1, but denied the contents of the same. Except producing Ext.D1, no evidence has been adduced on the side of the revision petitioner to prove that it was really executed by the complainant and the contents has not been proved as well. Once the contents of the documents has been disputed by the party who admitted the signature, the burden is on the accused to prove the same. Further, court below had after verifying the document, found that it was prepared in a blank signed paper after he came to know about the issuance of notice, in order to make it appear that his name is Manoj Menon K M and not Manoj K Menon in which name the notice was issued and rightly discarded Ext.D1 as a concocted document by the revision petitioner. Further, PW1 had produced Ext.P7 (series) cheques obtained from the bank to show that these cheques were really encashed by the revision petitioner through Ext.P8 account. This fact was not challenged by the revision petitioner while PW1 adduced evidence. Further, Ext.P9 will go to show that, the entire construction work was entrusted to the revision petitioner and the amounts paid were also mentioned therein and in certain places, the revision petitioner had acknowledged the liability to pay the amount as well. So, under the circumstances, courts below were perfectly justified in rejecting the contentions of the revision petitioner and believing the evidence of PW1 coming to the conclusion that complainant had proved that Ext.P1 to P3 cheques were issued by the revision petitioner in discharge of a legally enforceable debt for the amount due from him to the complainant.
10. As regards the issuance of the notice is concerned, it is true that in the notice, the name of the revision petitioner was shown as Manoj K Menon and according to him, his name is Manoj Menon K M. He had no case that other particulars mentioned in the cheque do onot relate to him. So, merely because there is some change in the name which cannot be said to be a material change so as to change the personality or identity of the person. The courts below were perfectly justified in coming to the conclusion that the notice issued is proper and there is deemed service which is sufficient under Section 138 of the Negotiable Instruments Act. So, under the circumstances, courts below were perfectly justified in convicting the revision petitioner for the offence alleged and concurrent findings of the court below on this aspect do not call for any interference.
11. As regards the sentence is concerned, the court below had sentenced him to undergo simple imprisonment for three months and also to pay a compensation of Rs.3,00,000/- in default to undergo simple imprisonment for three months under Section 357(3) of Code of Criminal Procedure, but the appellate court had reduced the substantive sentence to imprisonment till rising of court. Maximum leniency has been shown by the court below in imposing the sentence as well which cannot be said to be harsh or excessive. This court does not feel any reason to interfere with the same.
11. While this court was about to dispose of the revision, the Counsel for the revision petitioner sought six months time for payment of the amount. This was objected by the Counsel for the respondent on the ground that the transactions were of the year 2008 and the court below had awarded only the cheque amount as compensation. Considering these aspects, this court feels that, four months time can be granted to the revision petitioner to pay the amount. So, the revision petitioner is granted time till 12.03.2015 to pay the amount. If the amount is paid by the revision petitioner directly to the first respondent and produces receipt of the same before the court below and that is being acknowledged by the complainant by appearing before the court below, then, it can be treated as substantial compliance of the payment of compensation as directed by the court below and confirmed by this court and that can be entered 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 lower court is directed to permit the revision petitioner to serve the substantive sentence imposed on him.
With the above direction and observation, the revision 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