Accused in ST.No.989/2006 on the file of the Judicial First Class Magistrate Court-II (Mobile) Kottayam, is the revision petitioner herein. 2. The case was taken ion file on the basis of a private complaint filed by the first respondent –complainant bank against the revision petitioner alleging offence under section 138 of the Negotiable Instruments Act (herein after called the Act).
3. The case of the complainant in the complaint was that revision petitioner availed a loan from the bank and in discharge of that liability of Rs.1,16,746/-, he had issued Ext.P1 cheque which when presented was dishonoured for the reason funds insufficient. The complainant issued Ext.P3 notice vide Ext.P4 postal receipt and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment. The revision petitioner 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 offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the Manager of the complainant bank authorised by Ext.P6 resolution was examined as PW1 and Exts.P1 to P6 were marked on their side. After closure of the complainant’s evidence, revision petitioner was questioned under section 313 of the Code of Criminal Procedure (herein after called the Code) and he denied all the incriminating circumstances brought against him in the complainant’s evidence. He had further stated that the blank signed cheque given as security at the time of availing loan was misused and the present complaint was filed. No defence evidence was adduced on his side to prove his case. 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.1,16,746/- 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. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.814/2007 before the Sessions Court, Kottayam, which was made over to Additional Sessions Court (Adhoc-II), Kottayam, and the same was dismissed by the Additional Sessions Judge by the impugned judgment which is being challenged by the revision petitioner by filing this revision.
5. Since, the first respondent had appeared through counsel in the delay petition and expressed their willingness to appear in the revision also, this court felt that the revision can be admitted and can be disposed of on merit after hearing both sides today itself. So, the revision is admitted and heard both sides and disposed of today itself.
6. The counsel for the revision petitioner submitted that courts below have not properly appreciated the evidence of PW1, which is not sufficient to attract the offence under section 138 of the Act and the court below should have accepted the case of the defence that the blank signed cheque given was misused and present complaint was filed. The sentence imposed is also harsh which requires interference.
7. On the other hand, the counsel for the first respondent submitted that except the suggestion given no other evidence adduced and the courts below were perfectly justified in convicting the revision petitioner for the offence alleged. If the court feels that interference is required that can be allowable by enhancing the amount payable as the cheque was of the year 2006.
8. It is an admitted fact that the revision petitioner had availed a loan from the first respondent bank and he had committed default and the case of the complainant was that the amount was quantified as Rs.1,16,746/- and the revision petitioner had issued Ext.P1 cheque in discharge of that liability. The fact that he had issued the cheque with his signature is not in dispute. The revision petitioner has was that it was given as a blank signed cheque and later it was misused and the present complaint was filed. Except the suggestion given there is no other evidence adduced on the side of the revision petitioner to prove this fact.
9. On the other hand, PW1 was examined on the side of the complainant bank and deposed that the cheque was brought by the revision petitioner duly filled and signed his presence and it was delivered in discharge of that liability for the amount due from him to the bank. This aspect has not been seriously challenging in the cross examination as well. Further, he did not send any reply to ext.P3 notice sent by the complainant bank when the cheque was dishonoured and demanding payment. All these things will go to show that the case of the revision petitioner is not probable or believable and in the absence of any evidence adduced on his side to prove his defence, the presumption under section 139 has to be invoked to come to the conclusion that the cheque was issued in discharge of legally enforceable debt. Further, once the execution and delivery of the cheque proved by the complainant, then the burden is on the revision petitioner to prove the circumstance under which the cheque has reached at the hands of the complainant for which also no satisfactory evidence has been adduced by the revision petitioner. So, under the circumstances the courts below were perfectly justified in coming to the conclusion that the revision petitioner had issued Ext.P1 cheque in discharge of his liability for the amount due from him to the complainant bank and he had not paid the amount in spite of notice issued and thereby he had committed the offence punishable under section 138 of the Act and rightly convicted him for the said offence. The concurrent findings of the courts below on this aspect do not call for any interference.
10. As regards the sentence is concerned, the learned Magistrate had sentenced him to undergo simple imprisonment for three months and also to pay the cheque amount of Rs.1,16,746/- as compensation to the complainant in default to undergo simple imprisonment for three months more under section 357(3) of the Code of Criminal which was confirmed by the appellate court. In the decision reported in Damodar S. Prabhu V Sayed Babalal.H. [JT 2010(4) SC 457] and followed in Madhya Pradesh State Legal Services Authority V. Prateek Jain and Another [2014(4) KHC 115 (SC)], the Supreme Court has held that the offence under section 138 of the Negotiable Instruments Act are originally of civil nature. But it has been given a colour of criminal offence by incorporating the same in the statute. Further, the legislative intention is not to send a person to jail but make the drawer of the cheque to pay the amount to the payee of the cheque and realise the amount and pay the same to the payee of the cheque. Further, in the decision reported in Somanth Sarkar V Utpal Bahu Mallick [2013(4) KLT 350], the Hon’ble Supreme Court has held that there is no provision for payment of compensation for the offence under section 138 of the Act. But court can fix the fine payable which should not be exceed double the cheque amount and if the fine amount is quantified then the compensation can be paid to the complainant out of the fine invoking the power under section 357(1) (b) of the Code of Criminal Procedure. Taking those principles , this court feels that fine can be enhanced and substantive sentence to imprisonment can be reduced to imprisonment till rising of court and enhance the default sentence also and that will be sufficient and that will meet the ends of justice. Considering the fact that the case is of the year 2006, this court feels that fine can be quantified as Rs.1,50,000/- and the default sentence can be enhanced to four months from three months. So, the sentence imposed by the court below is set aside and the same is modified as follows:-
The revision petitioner is sentence to undergo imprisonment till rising of court and also to pay fine of Rs,1,50,000/- in default to undergo simple imprisonment for four months. If the fine amount is realised, the court below is directed to pay the same to the complainant under section 357 (1) (b) of the Code of Criminal Procedure. Six months time is prayed for by the counsel for the revision petitioner to pay the amount. Considering the amount involved, this court feels that the same can be granted. So, the revision petitioner is granted time till 17.05.2015 to pay the amount. Till then the execution of the sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and the revision petitioner produces proof of such payment before the court below and if it is acknowledged by the complainant by appearing before that court, then the court below is directed to treat the same as substantial compliance of payment of compensation out of fine as ordered by the court below and confirmed by this court and record the same in the respective registers and permit him to serve the substantive sentence of imprisonment till rising of court as provided in the decision reported in Beena V. Balakrishnan Nair and Another [2010(2) KLT 1017] and Sivankutty V. John Thomas and Another [2012(4) KLT 21] With the above modification of sentence alone and granting of time, the revision is allowed in part. Office is directed to communicate this order to the concerned court immediately.
Sd/- K.RAMAKRISHNAN, JUDGE R.AV //True copy// PA to Judge