Accused in S.T. No.297 of 2010 on the file of the Judicial First Class Magistrate Court-II, North Paravur is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the 1st respondent under Sec.138 of the Negotiable Instrument Act (for short, the NI Act). 2. The case of the complainant in the complaint was that there was an amount of Rs.10,00,000/- (Rupees ten lakhs only) due to the complainant and in partial discharge of that liability, the accused had issued Ext.P5 cheque for Rs.2,00,000/- (Rupees two lakhs only) dated 15.09.2009 and that was dishonoured for the reason funds insufficient vide Ext.P7 dishonour memo dated 15.09.2009 and this was intimated to the complainant by their banker vide Ext.P6 intimation letter dated 17.09.2009. The complainant issued Ext.P8 notice dated 24.09.2009 and that was received by the accused as evidenced by Ext.P9 postal acknowledgment. He had confirmed the payment vide Ext.P10 confirmation letter. The accused had not paid the amount. So he had committed the offence punishable under Sec.138 of the NI Act. So he filed the complaint.
3. When the revision petitioner appeared before the Court below, the particulars 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 P11 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Sec.313 of the Code of Criminal Procedure (for short, 'the Code') and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that he had no transactions with the complainant. In order to prove his case, DW1 was examined and Exts.D1 and D2 were marked on his side.
4. After considering the evidence on record, the Court below found the revision petitioner guilty under Sec.138 of the NI Act and convicted him thereunder and sentenced him to undergo simple imprisonment for one year and also to pay a fine of Rs.2,00,000/- (Rupees two lakhs only) in default to undergo simple imprisonment for three months more. It is further ordered that if the fine amount is realised, the same be paid to the complainant as compensation under under Sec.357(1) of the Code.
5. Aggrieved by the same, the revision petitioner filed Crl. Appeal No.495 of 2011 before the Sessions Court, Ernakulam which was made over to Additional Sessions Court, North Paravur. The learned Additional Sessions Judge, by the impugned judgment partly allowed the appeal by confirming the order of conviction but, modified the sentence to imprisonment till rising of the Court and instead of fine, directed the revision petitioner to pay compensation of Rs.2,00,000/- (Rupees two lakhs only) in default to undergo simple imprisonment for three months and time was granted till 25.09.2013 to pay the amount as well. Dissatisfied by the same, the present revision has been filed by the revision petitioner/accused before the Court below.
6. Since the 1st respondent has already entered appearance, this Court felt that the revision can be admitted and then disposed of on merit after hearing both sides. So the revision is admitted and heard today itself.
7. The counsel for the revision petitioner submitted that the execution of the cheque has not been proved and the appellant had no capacity to raise the amount and pay the amount.
8. The counsel for the 1st respondent submitted that the Court below after considering the evidence on record, rightly come to the conclusion that he had committed the offence and the concurrent findings of the Court below do not call for any interference.
9. The case of the complainant was that in partial discharge of the liability of Rs.10,00,000/- (Rupees ten lakhs only) borrowed, he had issued Ext.P5 cheque for Rs.2,00,000/- (Rupees two lakhs only). In order to prove his case, he himself had gone to the witness box and examined as PW1. Further his case was that the accused has agreed to pay interest as well for the amount and it will be seen from Ext.P11 tax returns filed by the complainant that he had paid the tax for the interest accrued as well. Further the evidence of DW1, the accountant of the complainant and Exts.D1 and D2 also will go to show that the accused borrowed the amount and this was shown in the tax return of the complaint. Further, Ext.P10 is the confirmation letter given by the accused himself regarding this aspect. The accused had no case that the legal formalities have not been complied with and he had no case that he had paid the amount. So under the circumstances, the Courts below were perfectly justified in coming to the conclusion that the accused had committed the offence punishable under Sec.138 of the NI Act and rightly convicted him. The concurrent findings of the Court below on facts do not call for any interference.
10. As regards the sentence is concerned, though the Court below had sentenced him to undergo simple imprisonment for one year and also to pay a fine of Rs.2,00,000/- (Rupees two lakhs only) in default to undergo simple imprisonment for three months and directed the amount to be paid to the complainant as compensation under Sec.357(1) Cr.P.C. That was modified by the appellate Court by sentencing him to undergo simple imprisonment till rising of Court and compensation of Rs.2,00,000/- (Rupees two lakhs only) with default sentence of three months simple imprisonment under Sec.357(3) of Code. Though there is a liability to pay interest, the Courts below did not consider that aspect for the purpose of awarding compensation. But, however that has not been challenged by the 1st respondent. This Court is not inclined to enhance the compensation at the request of the 1st respondent. I do not find any reason to interfere with the sentence imposed by the Court below as well as maximum leniency has been shown in this case.
11. While this Court was about to dispose of this revision, the counsel for the revision petitioner sought time for six months to pay the amount. This was objected by the counsel for the 1st respondent as there are other cases in which he will have to pay further amount as well. However, considering the amount involved, this Court feels that four months time can be granted for payment of the amount. So the revision petitioner is granted time till 17.02.2015 either to pay the amount directly to the complainant or to deposit the amount before the Court below. Till then, the Court below is directed to keep the execution and sentence in abeyance.
With the above observations and directions, the revision petition is dismissed.
Sd/-
K. RAMAKRISHNAN JUDGE / True Copy/ NS P.A. To Judge