Accused in S.T.No.135/2000 on the file of Chief Judicial Magistrate Court, Manjeri, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent/complainant herein, against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').
2. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of ₹6,95,000/-
and in discharge of the liability, he had issued Ext.P1 cheque in favour of the complainant. The cheque when presented was dishonoured for the reasons ‘funds insufficient’, vide Ext.P2 dishonour memo and that was intimated to the complainant by Ext.P3 intimation letter. The complainant issued Ext.P4 notice, vide Ext.P4(a) postal receipt and the same was received by the revision petitioner evidenced by Ext.P4(b) postal acknowledgment. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint.
3. 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, PWs 1 to 3 were examined and Exts. P1 to P6, P4(a) and P4(b) were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the 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 not issued the cheque as alleged by the complainant and he is innocent of the same. The cheque some how obtained by the complainant was mis-used and the present complaint was filed. No evidence was adduced on his side in defence. He had further stated that, his name is Muhammed Huskar and not Muhammed Askar. After considering the evidence on record, the trial court 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 ₹6,95,000/- as compensation to the complainant. Aggrieved by the same, the revision petitioner filed Criminal Appeal No.346/2002 before the Sessions Court, Manjeri, and the learned Sessions Judge by impugned judgment dismissed the appeal, confirming the order of conviction and sentence passed by the court below. Dissatisfied with the same, the present revision has been filed by the revision petitioner/accused before the court below.
4. Though the revision was filed in the year 2003 and notice was ordered to the respondent, but no steps was taken. So it was posted in the defect list on 27.08.2013 and two weeks time was granted to take steps, since steps was not taken, it was again posted to 22.11.2014, on that day also, there was no representation and no steps was taken and it was posted to 26.11.2014 for curing defect. But on that day also, there was no representation and no steps taken and it was posted to today in the disposal list. Even today there is no representation and no steps taken. But, considering the scope of enquiry and nature of contentions raised and also considering the fact that criminal revision once admitted cannot be dismissed for default, this court felt that, even without getting the presence of the complainant, the case can be disposed of merit, considering the materials available.
5. The case of the complainant in the complaint was that, revision petitioner borrowed ₹6,95,000/- and in discharge of that liability, he had issued the cheque. The case of the accused was total denial and his case was that the cheque was some how obtained, mis-used and the present complaint was filed and his name was Mohammed Huskar and not Mohammed Askar.
6. It is true that in the account extract produced as Ext.P5 and his name was shown as Mohammed Askar, but the evidence of PWs 2 and 3, the post master and postman will go to show that, the accused is known as Mohammed Askar also in the locality. Further the cheque was not returned for the reason, the name is not correct and the specimen signature of the accused given in the bank, tallies with the signature in Ext.P1 cheque as well. Further when a notice was issued, he did not send any reply to that notice. If really the cheque was missed from him and it was mis-used, he would have at least sent a reply. Further he did not inform the bank about the loss of cheque as well. There is nothing brought out to discredit the evidence of PW1, the complaint regarding the borrowel of the amount and issuance of the cheque. The capacity of the complainant to pay the amount was also not disputed. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that, the complainant had established his case, that the revision petitioner borrowed ₹6,95,000/- and issued Ext.P1 cheque in discharge of that liability and rightly convicted him for the offence under Section 138 of the Act and that finding does not call for any interference.
7. As regards the sentence is concerned, the court below sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay the cheque amount of ₹6,95,000/-, as compensation to the complainant under Section 357(3) of the Code of Criminal Procedure. This was confirmed by the appellate court. Considering the fact that, court below had awarded the cheque amount as compensation, this court feels that, the substantive sentence imposed by the court below is harsh and the same can be reduced to imprisonment till rising of the court. But at the same time, since the Hon’ble Supreme Court has held that, default sentence can be imposed for default of payment of compensation, this court feels that, the substantive sentence can be converted to default sentence. So the substantive 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 the court and also to pay the Cheque amount of ₹6,95,000/- as compensation, in default to undergo simple imprisonment for three months under Section 357(3) of the Code of Criminal Procedure.
With the modification of the sentence as mentioned above, the revision petition is allowed in part. Office is directed to communicate this order to the concerned court, immediately.
Sd/-
K. RAMAKRISHNAN, (Judge) // True Copy // P.A. to Judge ss