Accused in C.C.No.90/13 on the file of the Judicial First Class Magistrate Court, No-II, Kasaragod 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.2,00,000/- and in discharge of that liability, he had issued Ext.P1 cheque dated 25.05.2012 drawn on Kasarago Service Co-operative Bank Ltd., Thayalangadi branch in favour of the complainant. The cheque when presented was dishonoured for the reason 'funds insufficient' vide Ext.P2 dishonour memo dated 01.06.2012 which was intimated to the complainant by his banker vide Ext.P3 intimation letter dated 02.06.2012. The complainant issued Ext.P4 notice dated 19.06.2012 vide Ext.P5 postal receipt. 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 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 Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that his friend had obtained a loan from the complainant for which his cheque was given as a security and though the amount was paid, the cheque was not returned. But, he had not adduced any evidence in defence to prove his case.
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 imprisonment till rising of court and also to pay a fine of Rs.2,00,000/- in default to undergo simple imprisonment for two months. It is further ordered that if the fine is realised, the same was directed to be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure (wrongly quoted as Section 357(3) of Code of Criminal Procedure in the order of the lower court). Though the revision petitioner filed Crl.Appeal.No.77/14 before the Sessions Court, Kasaragod which was made over to III Additional Sessions Court, Kasaragod, the same was also dismissed by the Additional Sessions Court. Aggrieved by the same, the present revision has been filed by the revision petitioner – accused before the court below.
6. Considering the scope of enquiry and nature of contentions raised, this court felt that the revision can be disposed of at the admission stage itself after hearing the Counsel for the revision petitioner and the learned Public Prosecutor appearing for the second respondent dispensing with notice to the first respondent.
7. The Counsel for the revision petitioner submitted that the evidence of PW1 is not sufficient to prove the execution of the cheque especially when the same was denied by the revision petitioner.
8. On the other hand, the learned Public Prosecutor supported the concurrent findings of the court below on this aspect.
9. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.2,00,000/- 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, his friend borrowed some amount from the complainant and as a security for the same, his blank signed cheque was obtained. Though the amount was paid, the cheque was not returned. 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 the revision petitioner borrowing the amount and issuing the cheque. No evidence was adduced on the side of the revision petitioner to prove his case. He did not even mention the name of the friend or the amount borrowed etc., Further, he did not adduce any evidence to prove this fact as well. Once the execution of the cheque is proved by the complainant, then, the presumption under Section 139 of the Act will be attracted. So, in the absence of any evidence adduced on the side of the revision petitioner to prove his defence, the courts below were perfectly justified in relying on the evidence of PW1 and coming to the conclusion that the revision petitioner had borrowed the amount and issued the cheque in discharge of his liability. Further, the revision petitioner had no case that he had not received the notice sent by the complainant when the cheque was dishonoured and he had paid the amount after receipt of the same. So, under the circumstances, courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below on this aspect on facts do not call for any interference.
11. As regards the sentence is concerned, both the courts have shown maximum leniency and only imposed substantive sentence of imprisonment till rising of court and directed to pay the cheque amount as fine with default sentence with further direction to pay the fine amount if realised to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. So, I don't find any reason to interfere with the sentence imposed by the court below as well as it appears to be just and proper.
12. While this court was about to dispose of the revision petition, the Counsel for the revision petitioner sought eight months time for payment of the amount. Considering the fact that the case is of the year 2013 and also the amount involved, this court feels that, some time can be granted for payment of the amount. So, the revision petitioner is granted time till 05.05.2015 to pay the amount or deposit the amount before the court below. Till then, the execution of sentence is directed to be kept in abeyance. If the amount is paid directly to the complainant and the revision petitioner produces the proof of the same and that being acknowledged by the complainant before the trial court, then, the magistrate is directed to treat the same as substantial compliance of recovery of the amount and payment of compensation to the complainant as directed by the court 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 serve the substantive sentence of imprisonment till rising of court.
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