Accused in S.T.No.318/12 on the file of the Judicial First Class Magistrate Court, No-I, Thamarassery is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the complainant under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').
3. The case of the complainant in the complaint was that revision petitioner had business transactions with him and he had purchased articles evidenced by Ext.P2 invoice and issued Ext.P3, P4 and P10 cheques drawn on Kalpetta Service Co-operative Bank in favour of the complainant in discharge of that liability. The cheques when presented were dishonoured for the reason 'funds insufficient' evidenced by Ext.P5, P6 and P6(a) return memos. The complainant issued Ext.P7 notice vide Ext.P8 postal receipt and the same was received by the revision petitioner evidenced by Ext.P9 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 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 P10 and P6(a) 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 the amount covered by Ext.P3 Invoice has already been paid. The cheques given earlier as security for their business transaction was misused and the present complaint was filed. No evidence was adduced on his side in defence.
5. After considering the evidence on record, the court below 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 a compensation of Rs.2,06,000/- in default to undergo simple imprisonment for one month more under Section 357(3) of Code of Criminal Procedure. This was challenged by the revision petitioner by filing Appeal before the Sessions Court as Crl.Appeal.No.379/2013 and it was made over to Vth Additional Sessions Court, Kozhikode for disposal and the learned Additional Sessions Judge, Kozhikode by the impugned judgment, dismissed the appeal confirming the order of conviction and sentence passed by the court below.
6. Heard both sides.
7. The Counsel for the revision petitioner submitted that the execution of the cheques were not proved. Further, according to PW1, the cheques were filled by the person who accompanied the revision petitioner and except the invoice, he had not produced the bill to prove the amount. Since the execution of the cheques have not been proved, the complainant is not entitled to maintain the action under Section 138 of the Act. Courts below have not properly considered these aspects before convicting the revision petitioner for the offence alleged.
8. On the other hand, the Counsel for the second respondent submitted that, he had no dispute regarding the amount in Ext.P2 invoice and also the signature in the cheques and handing over the cheques as well. Further, though his case was that, he had discharged the amount covered by Ext.P2, but, he had not adduced any evidence to prove this fact. Further, PW1 had deposed the manner in which the cheques were executed and delivered. 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, he is the proprietor of Sathyam Associates, Royal Towers at Chungam and the revision petitioner was having business transaction with him and as per Ext.P2 invoice, he had purchased articles worth Rs.2,29,139/- and gave Rs.50,000/- and for the balance amount, he had issued Ext.P3, P4 and P10 cheques. The fact that the articles were purchased as per Ext.P2 invoice was admitted by the revision petitioner. But, his case was that, the amounts were paid and the three blank cheques given earlier were misused and the present complaint was filed and no amount was due as per the cheques. The complainant was examined as PW1 and he deposed in support of his case in the complaint. He had categorically stated that, the revision petitioner and one person accompanied him came to the shop and the writings in the cheques were written by the person who accompanied the revision petitioner and the revision petitioner signed the cheques and handed over the same to him. Though he was cross examined at length, nothing was brought out to discredit his evidence on these aspects. The minor contradictions in the evidence of PW1 is not that material to disbelieve the case of the complainant regarding the transaction and issuance of the cheques by the revision petitioner. Further, though the revision petitioner had a case that he had paid the amount covered by the invoice, he had not produced any document to prove the discharge pleaded by him. Once he had admitted that he had given a cheque with his signature and that was given as a security for the amount mentioned in the invoice, then, the burden is on him to prove that the purpose for which the cheque has been given is completed and why he had not got back the cheques. But, he had not taken any steps to get back the cheque as well. Further, it is settled law that if the cheque has been given as the security for some purpose and that was not performed, then, it can be deemed that there is an authority for the complainant to fill the cheque and use the same for the purpose for which it has been given. The Counsel for the revision petitioner submitted that he wants an opportunity to file an application to send the cheque for expert opinion. Even assuming that such an opportunity is given, that is not going to serve any purpose in this case as neither the complainant nor the revision petitioner had a case that the hand writing in the cheque was that of the complainant or the revision petitioner. No such suggestion was given to PW1 when he was examined before the court below as well. So, under the circumstances, the attempt of the revision petitioner is only to prolong the matter for which such a prayer has been made and that cannot be allowed at this stage.
10. Further, in this case, though he received the notice, he did not send any reply to the notice as well. That also will go to show that since he had nothing to say about the allegations made in the notice, he did not send any reply. No independent evidence or anything brought in the evidence of PW1 to prove the case put forward by the revision petitioner as well. So, under the circumstances, courts below were perfectly justified in coming to the conclusion that the complainant had proved his case beyond reasonable doubt and the cheques were issued in discharge of a legally enforceable debt for the amount due to the complainant and rightly convicted him for the offence under Section 138 of the Act and the concurrent findings of the court below on facts on this aspect do not call for any interference.
11. As far as the sentence is concerned, court below had sentenced him to undergo simple imprisonment for three months and also to pay a compensation of Rs.2,06,000/- in default to undergo simple imprisonment for one month under Section 357(3) of Code of Criminal Procedure and this was confirmed by the appellate court. It may be mentioned here that cases under Section 138 of Negotiable Instruments Act are basically of civil nature and criminal colour has been given by the statute by introducing Section 138 in the Negotiable Instruments Act.
12. Further, in the decision reported in Damodar S. Prabhu Vs. Sayed Babalal H. [JT 2010 (4) SC 457], the Hon'ble Supreme Court has held that the purpose of making this a criminal offence is not to send the drawer of the cheque to jail, but, to make the drawer of the cheque to pay the amount. Further, in the decision reported in Somnath Sarkar Vs. Utpal Basu Mallick [2013(4) KLT 350 (SC)], the Honb'le Supreme Court has reiterated the same things and also observed that under Section 138 of the Act, there is no provision for payment of compensation, but, court has got power to impose double the cheque amount as fine and if the fine amount is quantified, compensation can be awarded out of the fine. Here, the court below had quantified the compensation to the tune of the cheque amount. So, under the circumstances, this court feels that the compensation can be converted to fine and the substantive sentence can be added to the default sentence and reducing the substantive sentence to imprisonment till rising of court and directing the fine amount if realised to be payable to the complainant as compensation will be sufficient and that will meet the ends of justice. So, the sentence imposed by the court below as confirmed by the appellate court is set aside and the same is modified as follows: .
The revision petitioner is sentenced to undergo imprisonment till rising of court and also to pay a fine of Rs.2,06,000/- in default to undergo simple imprisonment for four months. If the fine amount is realised, the court below is directed to pay the fine amount to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. If the revision petitioner had deposited any amount as directed by this court, then, lower court is directed to permit the complainant to withdraw the same.
13. Six months time is granted for payment of the balance amount. So, the revision petitioner is granted time till 28.05.2015 to pay the amount. Till then, the execution of sentence is directed to be kept in abeyance.
With the above modification of the sentence alone, the revision petition is allowed in part and disposed of accordingly.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge