The accused in C.C.No.49/2009 on the file of the Judicial First Class Magistrate Court-V(Special Court for Marklist Cases), Thiruvananthapuram is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant/second respondent herein against the revision petitioner alleging commission of the offence punishable 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 accused borrowed a sum of Rs.2,05,000/- and in discharge of that liability, he had issued Ext.P3 cheque which when presented for collection was dishonoured for the reason fund insufficient evidenced by Ext.P4 dishonour memo and that was intimated to the revision petitioner by his banker vide Ext.P5 intimation letter. The complainant issued Ext.P7 notice vide Ext.P8 postal receipt. But the same was returned unclaimed by the addressee and he had not paid the amount and so he had committed the offence punishable under Section 138 of the 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 power of attorney holder of the complainant was examined as PW1 and his employee was examined as PW2 and Exts.P1 to P9 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 had denied all the incriminating circumstances brought against him in the complainant's evidence. The revision petitioner had further stated that he had not borrowed any amount from the complainant and there was a property transaction between the complainant and the revision petitioner for an amount of Rs.10 lakhs and thereafter the same could not be materialized. So he had obtained a blank signed cheque, which has been misused and the present complaint has been filed. In order to prove the case of the complainant, the complainant himself was examined as PW1 and he had stated that the revision petitioner had purchased 340 grams of gold ornaments from the jewellary run by PW1 and towards the liability he had issued some cheques but thereafter he could not pay the amount. So there was an agreement between the parties regarding the sale of the property and the cheque was issued. Though he was cross examined at length, nothing was brought out to discredit his evidence regarding this aspect. Further Pw2 also deposed that gold ornaments were purchased and this was adjusted to the property transaction which was covered by the agreement mentioned in Ext.P2 First Information Report. The court below had disbelieved the case of the revision petitioner as he did not adduce any further evidence and came to the conclusion that the complainant had proved his case and convicted the revision petitioner for the offence under Section 138 of the Act and sentenced him to undergo simple imprisonment for two months and also to pay a fine of Rs.2,05,000/-, in default to undergo simple imprisonment for one month. It is further ordered that, if fine amount is realized, the same be paid to the complainant as compensation under Section 357(1) of the Code. Aggrieved by the same, the revision petitioner filed Crl.A.360/2012 before the Sessions Court, Thiruvananthapuram, which was made over to Additional Sessions Court-II,Thiruvananthapuram for disposal and the Additional Sessions Judge allowed the appeal in part confirming the order of conviction and fine and further directed to pay the amount as compensation but reduced the substantive sentence to imprisonment till the rising of court. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below.
4. Considering the scope of enquiry and the nature of 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 and dispensing with notice to the second respondent.
5. The learned counsel for the revision petitioner submitted that he had denied the execution of the cheque and the complainant had a different case, then he is entitled to get the benefit of rebuttal of the presumption and the courts below were not justified in discarding the defence taken by the revision petitioner and the courts below were not justified in convicting the revision petitioner for the offence alleged.
6. The learned Public Prosecutor submitted that he did not adduce any evidence to rebut the presumption and the courts below were justified in convicting the revision petitioner for the offence alleged and the concurrent findings of the courts below on this aspect do not call for any interference.
7. The case of the complainant in the complaint was that the revision petitioner had issued Ext.P3 cheque in discharge of the liability for an amount of Rs.2,05,000/-. It is also true that in the complaint there is nothing mentioned about the transaction but during cross examination, it was brought out that there was some property transaction between the complainant and the revision petitioner for an amount of Rs.10 lakhs and as advance for the same, the amounts obtained by purchase of gold ornaments by the revision petitioner were adjusted and in discharge of that liability, he had issued Ext.P3 cheque when the transaction failed. Though he was cross examined at length, nothing was brought out to discredit his evidence on this aspect. Further the revision petitioner did not adduce any evidence to prove his defence as well. It is true that he can rely on the weakness of the case of the complainant to rebut the presumptions. But, if the evidence of the complainant has not been shaken and if it inspires the confidence of the court, then unless the revision petitioner adduces better evidence to disprove the case of the complainant and the circumstances under which his cheque reached the hands of the complainant, the courts below can rely on the evidence of the complainant and come to the conclusion that the revision petitioner has not rebutted the presumption and relying on the presumption available under Sections 139 and 118 of the Act rightly come to the conclusion that the cheque was issued in discharge of his liability. Further notice sent was returned unclaimed. The revision petitioner had no case that the notice will not be served in that address. Once it is proved by the complainant that notice has been issued in the correct address by registered post and if it is returned in spite of service of intimation, then it will be deemed to be proper service on the revision petitioner as contemplated under section 138 of the Act. So the courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent finding of the court on facts on this aspect do not call for any interference.
8. As regards the sentence is concerned, the trial court has sentenced the revision petitioner to undergo simple imprisonment for two months and also to pay the fine amount of Rs,205,000/-, in default to undergo simple imprisonment for one month. It is further directed that if fine amount is realized, the same be paid to the complainant as compensation under Section 357 (1) of the Code. The appellate court had though confirmed the conviction and sentence to pay compensation out of fine, but reduced the substantive sentence to till the rising of court which cannot be said to be excessive. Maximum leniency has been shown by the court below in awarding the sentence also. So, I do not find any reason to interfere with the sentence imposed by the court below as modified by the appellate court as it appears to be just and proper.
9. While the case was about to be disposed of, the counsel for the for the revision petitioner prayed for ten months time for payment of the amount. Considering the fact that the case is of the year 2009 and the amount involved is on the higher side, this Court feels that six months time can be granted for payment of the amount. So the revision petitioner is granted time till 10.5.2015 to pay the amount. Till then the execution of the sentence is directed to be kept in abeyance.
With the above observations, this revision petition is dismissed.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge