Accused in ST.No.868/2006 on the file of Judicial First Class Magistrate Court, Payyannur is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the first complainant herein 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 `.60,000/- and in discharge of that liability, he had issued Ext.P1 cheque in favour of the complainant. The cheque when presented was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo. The complainant issued Ext.P3 lawyer notice to the revision petitioner vide Ext.P4 postal receipt intimating the dishonour and demanding payment of the amount and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment. He had not paid the amount. So, the revision petitioner had committed the offence punishable under section 138 of the Act. Hence the complaint.
4. When the revision petitioner appeared before the court below, particulars of offences were read over and explained to him and pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P5 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 some money transaction with the complainant and at the time of borrowing the amount, a blank signed cheque was obtained and later he had sold his properties and discharged the liability but the cheque was not returned and misusing the cheque, the present complaint has been filed. In order to prove his case, DWs 1 to 6 were examined. After considering the evidence on record, the court below found that the evidence of DWs 1 to 6 is not sufficient to dislodge the presumption available under section 138 of the Act and also believed the case of the complainant and convicted the revision petitioner for the offence 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 `.60,000/- as compensation to the complainant in default to undergo simple imprisonment for three months under section 357 (3) of the Code of criminal procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.541/2008, before the Sessions Court, Thalassery, which was made over to the Additional Sessions Court-II, Thalassery for disposal. The learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction and direction to pay compensation with default sentence but reduced the substantive sentence of imprisonment till rising of court. Aggrieved by the same, the revision has been filed by the revision petitioner-accused before the court below.
5. Considering the scope of enquiry and also nature of contentions raised, this court felt that the revision can be disposed of at the admission stage itself, after hearing learned counsel appearing for the revision petitioner and the learned Public Prosecutor appearing for the second respondent and dispensing with notice to the first respondent.
6. The counsel for the revision petitioner submitted that the evidence of DWs 1 to 6 will go to show that they have involved in mediating the case and in fact the amount mentioned in the cheque is not due and he had paid some amount and the matter was attempted to be settled but misusing the cheque the present complaint was filed has been established by the revision petitioner and thereby he had rebutted the presumption and this has not been properly appreciated by the court below. So, according to the learned counsel appearing for the revision petitioner, the courts below were not justified in convicting the revision petitioner for the offence under section 138 of the Act.
7. On the other hand, the learned Public prosecutor supported the concurrent findings of the court below on this aspect.
8. The case of the complainant in the complaint was that revision petitioner borrowed a sum of `.60,000/- and in discharge of that liability, he had issued Ext.P1 cheque. The case of the revision petitioner was that there was some money transaction between the complainant and the revision petitioner and at the time of borrowing the amount, a blank signed cheques was given as security and though he had paid the amount, the complainant wanted more amount and he did not want to settle the claim and in order to pressurise the revision petitioner to pay more amount that the present complaint has been filed. It is settled law that once the execution of the cheque and the transaction is denied, then it is for the complainant to prove the case by adducing cogent evidence in order to attract the presumption available under section 139 and 118 of the Code of criminal procedure. In order to prove that case, 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. He had denied the suggestions that the revision petitioner had not borrowed so much amount and in fact he had repaid the amount as well. DW1 is a person, who purchased the property of the revision petitioner and DW2 is the broker involved in the transaction between DW1 and revision petitioner. DW4 is the accused and DWs 3, 5 and 6 are the persons who had attempted for the mediation to settle the claim and according to them the revision petitioner had paid `.10,000/- and they wanted to settle the case for `.20,000/- for which the complainant was not amenable. Except the oral testimony of the witnesses there is no acceptable evidence adduced on the side of the revision petitioner to prove the transaction as claimed by him. Further the evidence of DW1 to 6 also will not go to show that as to what was the real transaction between the complainant and the revision petitioner and the reason for the complainant for not accepting the offer made by them during the settlement. The revision petitioner also had no case as to what is the amount borrowed by him for which the cheque was issued as security. He had no case in the 313 examination that only part of the amount was paid and though the mediation was attempted and some amount was offered which was not accepted by the complainant which was projected by him while examining DWs 3, 5 and 6. Though the revision petitioner had sent a reply neither the complainant nor the revision petitioner had produced the same before the court so as to ascertain the nature of contention taken by the revision petitioner in the reply notice. Further, he had not taken any action against the complainant for misusing the cheque. He had not produced any acceptable evidence to prove discharge of liability claimed by him as well. So, under the circumstances, courts below were perfectly justified in coming to the conclusion that the case put up by the revision petitioner is not believable and rightly believed the evidence of PW1 and convicted the revision petitioner for the offence under section 138 of the Act and the concurrent findings of the courts below on fact on this aspect do not call for any interference.
9. 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 `.60,000/- as compensation to the complainant in default to undergo simple imprisonment for three months more under section 357 (3) of the Code of Criminal Procedure and in the appeal the substantive sentence was reduced to imprisonment till rising of court confirming the direction to pay compensation with default sentence under section 357 (3) of the Code of Criminal Procedure. So, maximum leniency has been shown by the appellate court in awarding sentence as well and it cannot be said to be excessive or harsh. So, this court do not find any reason to interfere with the sentence as well.
10. While this court was about to dispose of the revision, the counsel appearing for the revision petitioner sought five months time for payment of the amount. Considering the fact that the case is of the year 2006, and also the amount involved, this court feels that the period asked for is excessive. At the same time, this court feels that some time can be granted to the revision petitioner to pay the amount. So, the revision petitioner is granted time till 13.03.2015 to pay the amount. Till then the execution of the sentence is directed to be kept in abeyance. If the amount is paid directly to the complainant and the revision petitioner produces proof of the same before the court below and that is being acknowledged by the complainant before the court below, then the court below is directed to treat the same as substantial compliance of payment of compensation to the complainant and record the same in the respective registers as provided in the decision in Beena V. Balakrishnan Nair and Another [2010(2) KLT 1017] and Sivankutty V. John Thomas and Another [2012(4) KLT 21] and permit the revision petitioner to serve the substantive sentence of imprisonment till rising of court and close the case.
With the above directions and observations, the revision petition is dismissed. Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.RAMAKRISHNAN, JUDGE R.AV //True Copy// PA to Judge