The accused in C.C.No.637/2007 on the file of the Judicial First Class Magistrate Court, Irinjalakuda is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent/complainant against the revision petitioner alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). 2. The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs.1,10,000/- on two occasions and in discharge of that liability, he had issued Ext.P1 cheque in favour of the complainant which when presented was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo which was intimated to the complainant by their banker vide Ext.P3 intimation letter. The complainant issued Ext.P4 notice vide Ext.P5 postal receipt intimating dishonour and demanded payment of the amount and the same was received by the revision petitioner evidenced by Ext.P6 acknowledgment. But he had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act .Hence the complaint.
3. When the revision petitioner appeared before the court below, 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 P6 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that the cheque was given as security when he joined as driver under the complainant and the same was not returned when he left the job and misusing that cheque, the present complaint has been filed. No evidence was adduced on his side in defence. After considering the evidence on record, the court below found that the case of the revision petitioner is not probable and believable and convicted him for the offence under Section 138 of the Act and sentenced him to undergo simple imprisonment for three months and also to pay fine of Rs.1,10,000/- under Section 357 (1) of the Code, in default to undergo simple imprisonment for one month. It is further ordered that fine amount if realized, Rs.1,05,000/- will be paid to the complainant as compensation under section 357(1) (b) of the Code. Aggrieved by the same, the revision petitioner filed Crl.A.No681/2008 before the Sessions Court, Thrissur which was made over to the Additional Sessions Court, Irinjalakuda for disposal and the learned Additional Sessions Judge 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 by the revision petitioner/accused before the court below.
4. Since the counsel appearing for the first respondent had appeared in the delay condonation application and he had agreed to appear in the revision also, this Court felt that the revision can be admitted, heard and disposed of on merit today itself after hearing both sides. So the revision is admitted, heard and disposed of today itself.
5. The counsel for the revision petitioner submitted that the court below had not properly appreciated the case of the revision petitioner that the cheque was given as security when he joined as driver under the complainant. Though he left the job, the cheque was not returned and misusing the same, the present complaint has been filed.
6. The counsel for the 1st respondent submitted that no evidence was adduced on the side of the revision petitioner to prove his case that he was working as a driver under the complainant and the cheuqe was given as security for the job which was denied by him. So the courts below were perfectly justified in convicting the revision petitioner for the offence alleged.
7. The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs.1,10,000/- on two occasions and when he demanded, he had issued Ext.P1 cheque for the said amount in discharge of that liability. The case of the revision petitioner is one of total denial. His case was that there is no creditor borrower relationship between them. In fact when he was given a job as driver under him, a blank signed cheque was obtained as security and that was misused and the present complaint was filed. In order to prove the case of the complainant, the complainant himself was examined as PW1 and though he was cross examined at length, nothing was brought to discredit his evidence regarding this aspect. Further the revision petitioner did not take any steps to get back his cheque or any action against the complainant for misusing the cheque as well. If he had given the cheque as security for the job and if he had left the job and the cheque was not returned, then he would have informed the bank not to honour the cheque by issuing stop memo and giving intimation to the complainant, which he had not done. He had not adduced any evidence to prove his case as well.
8. It is settled law that mere denial or suggestions is not sufficient to rebut the presumptions available under Section 139 of the Act. So, the courts below were perfectly justified in convicting the revision petitioner/accused for the offence under Section 138 of the Act and the concurrent finding of the court below do not call for any interference.
9. As regards the sentence is concerned, the court below has sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay fine of Rs.1,10,000/-, in default to undergo simple imprisonment for one month. It is further ordered that out of the fine amount, an amount of Rs.1,05,000/- be paid to the complainant as compensation under Section 357(1)(b) of the Code. This was affirmed by the appellate court. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H. (JT 2010 (4) SC 457) and also in Somnath Sarkar v. Utpal Basu Mallick (2013 (4) KLT 350 (SC) the Supreme court has held that cases under Section 138 of the Act are basically of civil nature but a criminal colour has been given by introducing the same under the Act so as to make the drawer of the cheque to pay the amount. Further it is also observed that endavour must be made to compensate the drawer of the cheque and for that purpose court has been given power to impose double the cheque amount as fine as well. So in this case court below had decided to impose entire cheque amount as fine and directed to pay compensation of Rs.1,05,000/- to the complainant out of the fine amount. So considering the circumstances, the substantive sentence of three months imprisonment imposed by the court below appears to be harsh and the same can be reduced to imprisonment till rising of court and the entire fine amount can be directed to be paid to the complainant as compensation and that will be sufficient and that will meet the ends of justice and default sentence can be enhanced to four months from one month. So the sentence imposed by the court below is set aside and the same is modified as follows:
The revision petitioner is sentenced to undergo imprisonment till the rising of court and also to pay a fine of Rs.1,10,000/-, in default to undergo simple imprisonment for four months. If fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code.
10. The counsel for the revision petitioner sought six months time for payment of the amount. This was objected by the counsel for the first respondent. Considering the fact that the case is of the year 2007, the time sought appears to be on the higher side but at the same time, this Court feels that some time can be given. So the revision petitioner is granted time till 30.4.2015 to pay the amount. Till then execution of the sentence is directed to be kept in abeyance.
With the above modification of the sentence, the revision petition is allowed in part.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge