Accused in S.T.No.480/08 on the file of Judicial First Class Magistrate Court, No-II, Mavelikkara is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the first respondent under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').
3. The case of the complainant in the complaint was that accused borrowed a sum of Rs.3,85,000/- and in discharge of that liability, he had issued Ext.P2 and P3 cheques which when presented were dishonoured for the reason 'funds insufficient' vide Exts.P4(a) and P4(b) dishonour memos and the same was intimated to the complainant by their banker vide Exts. P5(a) and P5(b) intimation letters. The complainant issued Ext.P6 notice evidenced by Ext.P7 postal receipt. Since he did not get back the postal acknowledgment, he filed a complaint to the postal authority and obtained Ext.P8 reply regarding the service of notice on the addressee. The accused issued Ext.P9 reply notice with false allegations. He had not Crl.R.P.No.1057 of 2012 : 2 :
paid the amount. So, he had committed the offence punishable under Section 138 of the Act. Hence the complaint.
4. When the accused 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 power of attorney holder of the complainant was examined as PW1 and the complainant himself was examined as PW2 and Exts.P1 to P14, P4(a), P4(b), P5(a), P5 (b) were marked on the side of the complainant. After closure of the complainant's evidence, the accused was questioned under Section 313 of Code of Criminal Procedure and he had deposed that there was some business transaction between him and PW2 and the cheques were issued to secure payment of amounts as share of the price of the real estate business and slaughter of rubber trees business and it was given as security for that purpose and it was not intended as a discharge of any liability and there is no amount due as mentioned in the cheques. In order to prove his case, DWs 1 to 4 were examined.
5. After considering the evidence on record, the trial court 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.3,85,000/- to the complainant in default to undergo simple imprisonment for six months under Section 357(3) of Code of Criminal Procedure. Aggrieved by the same, revision petitioner filed Crl.Appeal No.162/10 before the Sessions Court, Alappuzha which was made over to Additional Sessions Court, (Fast Track) Mavelikkara for disposal and the learned Additional Sessions Judge by the impugned judgment dismissed the appeal confirming the order of conviction and sentence passed by the court below. Aggrieved by the same, the present revision has been filed.
6. Since the first respondent appeared, this court felt that the revision can be admitted and can be heard and disposed of on merit. So, the revision is admitted and heard and disposed of today itself on merit.
7. The Counsel for the revision petitioner submitted that the evidence of DWs 1 to 4 will go to show that the case of the accused is more probable than the case of the complainant and there were some property transaction which the accused and the complainant had done jointly and the cheques were obtained as security for that transaction and when their relationship stained, the cheques have been misused and the present complaint has been filed. He had rebutted the presumption and courts below were not justified in convicting the appellant for the offence alleged.
8. On the other hand, Counsel for the first respondent submitted that Ext.P13 is an agreement executed between the complainant and the accused in which he had admitted the liability of Rs.3,85,000/- and also issuance of the cheque in discharge of that liability. So, the defence evidence adduced is not much helpful to prove the case of the accused and the courts below have rightly come to the conclusion that the case of the accused is not probable and rightly convicted him for the said offence.
9. The case of the complainant in the complaint was that, accused borrowed several amounts on several occasions and issued Ext.P2 and P3 cheques in discharge of that liability for amounts of Rs.2,00,000/- and Rs.1,85,000/- respectively. The case of the accused was that the cheques were given as security for the business transaction between them. In order to prove his case, DWs 1 to 4 were examined and they have stated that there was some transactions of property and also slaughtering of rubber trees between the complainant and the accused and they were also participated in those transactions.
But, those evidence alone is not sufficient to come to the conclusion that the cheques were issued as security, especially when Ext.P13 is the document executed by the accused in which he had admitted the existence of liability of Rs.3,85,000/- and also admitted the issuance of Ext.P2 and P3 cheques for discharge of that liability. There is no case for the accused that Ext.P13 was not executed by the accused and it was obtained by some forcible method and he is not bound by the terms mentioned therein. So, under the circumstances, courts below were perfectly justified in discarding the oral evidence adduced on the side of the accused through DWs 1 to 4 and relying on the evidence of PWs 1 and 2 and Ext.P13 and other documents produced by the complainant, came to the conclusion that the complainant had proved the liability of the accused and issuance of Ext.P2 and P3 cheques in discharge of that legally enforceable debt and rightly convicted him for the said offence. So, the concurrent findings of the court below on facts on this aspect do not call for any interference as no infirmity or illegality has been committed by the courts below on this aspect.
10. As regard the sentence is concerned, the trial court has sentenced the accused to undergo simple imprisonment for three months and also to pay the cheque amount of Rs.3,85,000/-, as compensation to the complainant in default to undergo simple imprisonment for six months under Section 357(3) of Code of Criminal Procedure and this was confirmed by the appellate court as well.
11. It is settled law that the intention of the legislature behind enacting Section 138 is not really to punish the drawer of the cheque by sending to jail, but, to realize the amount and pay the same to the complainant. So, under the circumstances, it is not necessary to impose compulsory imprisonment as a part of the sentence. So, considering the amount involved and also considering the fact that the entire cheque amount was awarded as compensation, this court feels that the substantive sentence of three months simple imprisonment can be set aside and the same can be reduced to imprisonment till rising of court and the compensation can be converted into fine and with a direction to pay the amount as compensation if realized will be sufficient and that will meet the ends of justice. The Counsel for the revision petitioner prayed nine months time for payment of the amount. He had further submitted that he had deposited Rs.45,000/- before the court below in compliance with the direction of the appellate court for suspending the sentence and further amount of Rs.75,000/- to comply with the direction of this court and he wanted some more time for payment of the balance amount. This prayer was opposed by the Counsel for the first respondent. Considering the fact that he had made some deposit to comply with the direction of the Sessions Court and this court, this court feels that some more time can be granted to the revision petitioner to pay the amount. So, six months time is granted for payment of the amount. 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.3,85,000/- in default to undergo simple imprisonment for six months. If the fine amount is realized, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. The amounts if any already deposited is directed to be adjusted towards payment of fine and that can be permitted to be withdrawn by the complainant towards the compensation payable and the lower court is directed to pay the amount without further direction in this regard. The revision petitioner is granted time till 24.04.2015 to pay the balance amount directly to the complainant or deposit the amount before the court below. Till then, the execution of sentence is directed to be kept in abeyance. If the revision petitioner pays the balance amount directly to the complainant and produces proof of such payment and it is being acknowledged by the complainant before the court below, then, court below is directed to treat the same as substantial compliance of the payment as directed by this court and record payment of the amount in the respective registers as provided 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 undergo the substantive sentence till rising of court.
With the above modification of the sentence and observations made, the revision petition is allowed in part.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge