The accused in S.T.C.No.166/2007 on the file of the Judicial First Class Magistrate Court-II, Kannur is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the second respondent 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.One lakh in the month of January, 2006 agreeing to pay the same within two months and when he demanded the amount, the revision petitioner issued Ext.P1 cheque, which when presented was dishonoured for the reason funds insufficient evidenced by Ext.P2 dishonour memo. The complainant issued Ext.P3 notice vide Ext.P4 postal receipt to the revision petitioner intimating dishonour and demanding payment of the amount and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment. He had sent Ext.P6 reply stating that there was a property transaction between the revision petitioner and a relative of the complainant, for which the cheque was given as security as a mediator but the cheque was not returned. No evidence was adduced on his side to support his case. After considering the evidence, 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 cheque amount of Rs.One lakh as compensation to the complainant under Section 357(3) of the Code. Aggrieved by the same, the revision petitioner filed Crl.A.No. 145/2008 before the Sessions Court, Thalassery, which was made over to Second Additional Sessions Court, Thalassery for disposal and the learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction but modified the sentence to till the rising of court and also to pay Rs.One lakh as compensation to the complainant under Section 357(3) of the Code. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below.
3. Considering the nature and scope of enquiry and the contentions raised, this Court felt that the revision can be disposed of at the admission stage itself after hearing the counsel for the revision petitioner and the learned Public Prosecutor appearing for the first respondent dispensing with notice to the second respondent.
4. The counsel for the revision petitioner submitted that the courts below had not properly appreciated the evidence and he had rebutted the presumptions and sent reply showing his bonafide. So he prayed for allowing the revision.
5. The learned Public Prosecutor supported the concurrent findings of the courts below.
6. The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs.One lakh and in discharge of that liability, he had issued Ext.P1 cheque. But the case of the revision petitioner was that there was no money transaction between the complainant and the revision petitioner. He along with some friends entered into property transaction with a relative of the complainant and as security for the same, his cheque was obtained but though transaction was not materialized, the cheque was not returned. 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. He denied the suggestion that the cheque given for the property transaction between the revision petitioner, his friends and a relative of the complainant was misused. Except making suggestion and sending reply, no action was taken by the revision petitioner to get back the cheque or to prove his case by adducing independent evidence. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that the revision petitioner had failed to rebut the presumption under Section 139 of the Act and rightly convicted him for the offence under Section 138 of the Act and the concurrent findings of the courts below on facts on this aspect do not call for interference.
7. As regards the sentence is concerned, the courts below had committed illegality in not imposing default sentence for non payment of compensation and in view of the dictum laid down in Somnath Sarkar v. Utpal Basu Mallick (2013 (4) KLT 350(SC) the court has no power to award compensation in a case under Section 138 of the Act and the court can only impose double the cheque amount as fine and after quantifying the fine amount compensation can be awarded out of the same. Under the circumstances this Court feels that the sentence can be modified as follows:
The revision petitioner is sentenced to undergo imprisonment till the rising of court and also to pay fine of Rs. One lakh, in default to undergo simple imprisonment for three months. If the fine amount is realized, the same be given to the complainant as compensation under Section 357(1)(b) of the Code.
8. The counsel for the revision petitioner sought ten months time for payment. Considering the amount involved, this Court feels that eight months time can be given for payment of the amount. The revision petitioner is granted time till 12.8.2015 to pay the amount. Till then, execution of the sentence is directed to be kept in abeyance.
With the modification of the sentence and direction granting time, the revision petition is disposed of accordingly.
Office is directed to communicate this order to the concerned court immediately. Sd/-
K. RAMAKRISHNAN, JUDGE.
/true copy/ cl P.S to Judge