Accused in S.T.No.2346/2007 on the file of the Judicial First Class Magistrate Court, No-I, Palakkad 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.1,50,000/- on 15.08.2007 undertaking to pay the amount within a week and issued Ext.P1 post dated cheque for the said amount with date 23.08.2007. The cheque when presented was dishonoured for the reason 'payment stopped' evidenced by Ext.P2 dishonour memo and the same was intimated to the complainant vide Ext.P3 advice memo from his banker. The complainant issued Ext.P4 notice vide Ext.P4(a) postal receipt and the same was returned with endorsement 'unclaimed' evidenced by Ext.P5 returned notice. 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 complainant himself was examined as PW1 and Exts.P1 to P5 and P4(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 he had some cement business transaction with one Sanjeev Kumar and issued a blank singed cheque as security and though the amount was paid, the cheque was not returned. Misusing the cheque, 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 six months and also to pay the cheque amount of Rs.1,50,000/- as compensation in default to undergo simple imprisonment for two months under Section 357(3) of Code of Criminal Procedure. Dissatisfied with the same, the revision petitioner filed Crl.Appeal.No.157/2010 before the Sessions Court, Palakkad which was made over to Additional Sessions Court, Adhoc No- I, Palakkad for disposal and the learned Additional Sessions Judge, allowed the appeal in part confirming the order of conviction, but, reduced the substantive sentence to one month simple imprisonment and converted the compensation to fine of Rs.2,16,400/- in default to undergo simple imprisonment for three months and further directed to pay the fine amount if realised to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Aggrieved by the same, the present revision has been filed by the revision petitioner.
6. Since the respondent had appeared in the delay condonation application through Counsel and expressed his willingness to appear in the revision also, this court felt that the revision can be admitted and disposed of on merit after hearing both sides. So, the revision is admitted and heard and disposed of today itself.
7. The Counsel for the revision petitioner submitted that the the evidence of PW1 is not sufficient to prove the execution. So, the courts below were not justified in convicting the revision petitioner for the offence alleged.
8. On the other hand, the Counsel for the first respondent submitted that the courts below have concurrently found on evidence that he had committed the offence and the concurrent finding do not call for any interference.
9. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.1,50,000/- and in discharge of that liability, he had issued Ext.P1 post dated cheque. The case of the revision petitioner was that he had no transaction with the complainant, but, he had cement business with one Sanjeev Kumar and issued a blank singed cheque as security and though the transactions were over, the cheque was not returned and misusing the cheque, the present complaint was filed. 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 on the question of revision petitioner borrowing the amount and issuing Ext.P1 cheque in discharge of that liability. The revision petitioner had no case that the signature in Ext.P1 was not his. Though he had a case that the cheque given to Sanjeev Kumar was misused, he had not adduced any evidence to prove that fact. He did not take any action against Sanjeev Kumar for not returning his cheque. So, under the circumstances, the courts below were perfectly justified in rejecting the contentions of the revision petitioner and believing the evidence of PW1 and convicting the revision petitioner for the offence under Section 138 of the Act and the finding does not call for any interference.
10. As far as the sentence is concerned, the court below had sentenced him to undergo simple imprisonment for six months and also to pay the cheque amount of Rs.1,50,000/- as compensation to the complainant in default to undergo simple imprisonment for two months more under Section 357 (3) of Code of Criminal Procedure. But, the appellate court had reduced the substantive sentence to one month simple imprisonment, but, converted the compensation to fine of Rs.2,16,400/- adding interest at the rate of 9% for 59 months and default sentence of three months more and further directed to pay the entire fine amount as compensation to the complainant. Having enhanced the fine to more than the cheque amount adding interest for a period of 59 months and directing the entire fine amount to be paid as compensation to the complainant, this court feels that the substantive sentence of one month simple imprisonment imposed by the court below appears to be harsh and the same can be reduced to imprisonment till rising of court. So, the sentence is modified as follows:
The revision petitioner is sentenced to undergo imprisonment till rising of court and also to pay a fine of Rs.2,16,400/- in default to undergo simple imprisonment for three months. If the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Six months time is granted to the revision petitioner to pay the amount. So, the revision petitioner is granted time till 19.06.2015 to pay the amount. Till then, the execution of sentence is directed to be kept in abeyance. If any amount has been deposited as directed by the appellate court, then, the same be released to the complainant and that amount can be adjusted towards the fine imposed in this case.
With the above modification of the sentence alone, the revision 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