Accused in S.T.No.20/2012 on the file of the Judicial First Class Magistrate Court-II, Ettumanoor, 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 offence under Section 138 of the Negotiable Instruments Act (hereinafter called ‘the Act’).
2. The case of the complainant in the complaint was that, the revision petitioner borrowed a sum of ₹1,50,000/- and in discharge of that liability, the revision petitioner issued Ext.P1cheque, which when presented was dishonoured for the reasons ‘funds insufficient’, evidenced by Ext.P2 dishonour memo. The complainant issued Ext.P4 notice dated 27.06.2011 on the same day vide Ext.P3 postal receipt and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment. The revision petitioner had not paid the amount. 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, the 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 herself was examined as PW1 and Exts.P1 to P5 were marked on her side. After closure of the complainant’s evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, he had borrowed only ₹10,000/- from the complainant and issued a blank singed cheque in the year 2008 and though he paid the amount, the cheque was not returned and when he received the notice intimating the dishonour, he filed a complaint before the police and the matter was settled between them and in spite of that the present complaint has been filed. In order to prove his case, the officer of the financier was examined as DW1 and the revision petitioner himself was examined as DW2 and Ext.D1 was marked on his side. After considering the evidence on record, the court below disbelieved the case of the revision petitioner and found him guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for six months and also to pay the cheque amount of ₹1,50,000/-, as compensation to the complainant, in default to undergo simple imprisonment for three months more under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, revision petitioner filed Crl.Appeal No.311/2013 before the Sessions Court, Kottayam, which was made over to 4th Additional Sessions Court, Kottayam, for disposal and the learned Additional Sessions Judge by the impugned order allowed the appeal in part, confirming the order of conviction and direction to pay compensation with default sentence, but reduced the substantive sentence to imprisonment till rising of the court. Dissatisfied with the same, the present revision has been filed by the revision petitioner/accused before the court below.
4. Considering the scope of enquiry and nature of defence taken by the revision petitioner in the lower court, this court felt that, the revision can be disposed of at the admission stage itself, after hearing the counsel for the revision petitioner and Public Prosecutor appearing for the first respondent, dispensing notice to the second respondent.
5. The counsel for the revision petitioner submitted that, the evidence of DWs 1 and 2 coupled with Ext.D1 will go to show that, the case of the revision petitioner is more probable than the case of the complainant and he had given the reasons for not sending the reply also, but these aspects were not properly appreciated by the courts below and he had rebutted the presumption and the finding of guilt entered by the courts below is unsustainable in law and he is entitled to get acquittal.
6. The learned Public Prosecutor supported the concurrent findings of the court below on facts.
7. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of ₹1,50,000/-
and in discharge of that liability he had issued Ext.P1 cheque. The case of the revision petitioner was that, he borrowed only an amount of ₹10,000/- for the purpose of paying instalment due to the financier, which he had obtained for purchasing an autorickshaw and though the amount was paid and the cheque was not returned which he had given as security. When he received the notice, he filed a police complaint and both were called to the police station and the matter was settled there and in spite of that, the present complaint has been filed. In order to prove the case of the complainant, the complainant herself was examined as PW1 and she deposed in support of her case in the complaint. She had categorically stated that, her daughter was working in U.S.A and she was sending money, from that money, she lent the amount to the revision petitioner, as he wanted to purchase an autorickshaw. She believed his words and gave the money. The cheque was executed and delivered in her presence. Though she was cross examined at length, nothing was brought out to discredit her evidence regarding the question of the revision petitioner borrowing the amount and issuing Ext.P1 cheque in discharge of that liability. Further he did not send any reply to the notice issued by the complainant. In order to prove the case of the revision petitioner, the officer of the finance company was examined as DW1 and Ext.D1 was marked through him. That only shows that, he availed a loan from the finance company for purchasing the autorickshaw. That will not help the case of the revision petitioner to rebut the presumption available under Section 139 of the Act. Further DW2 had admitted that, he did not take any action to get back the cheque, after he had repaid the amount which he borrowed. He had not produced any document to prove that aspect as well. Though he had a case that, when he received the notice, he filed a complaint to the police and both were called to the police station and the matter was settled from there, he did not adduce any evidence to prove that fact as well, especially when this aspect was denied by PW1, when she was examined before the court below. So under the circumstances, courts below were perfectly justified in coming to the conclusion that, the evidence adduced from the side on the side of the revision petitioner is not sufficient to rebut the presumption under Section 139 of the Act and rightly believed the evidence of PW1 and came to the conclusion that, the revision petitioner had committed the offence punishable under Section 138 of the Act and rightly convicted him for the offence alleged and the concurrent findings of the court below on this aspect do not call for any interference.
8. As regards the sentence is concerned, the court below had sentenced him to undergo simple imprisonment for six months and also to pay the cheque amount of ₹1,50,000/-, as compensation to the complainant and in default to undergo simple imprisonment for three months under Section 357(3) of the Code of Criminal Procedure. The appellate court, though confirmed the direction to pay compensation with default sentence under Section 357(3) of the Code of Criminal Procedure, reduced the substantive sentence to imprisonment to till rising of the court. So maximum leniency has been shown by the courts below in imposing the sentence as well and the sentence cannot be said to be excessive or harsh, which requires interference at the hands of this court.
9. When this court was about to dispose of the case, the counsel for the revision petitioner prayed for seven months time to pay the amount. Considering the amount involved, and also considering the fact that, the case is of the year 2012, this court feels that, the time can be granted as prayed for. So the revision petitioner is granted time till 11.07.2015 to pay the amount, till then the execution of sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and produces proof of payment and the complainant appears before the court below and acknowledges the receipt of the same, then court below is directed to treat the same as substantial compliance of payment of compensation out of fine and record the same in the respective registers and permit the revision petitioner to serve the substantive sentence of imprisonment till rising of the court as provided in the decision reported in (2010 (2) KLT 1017) Beena v. Balakrishnan Nair and Another and (2012(4) KLT 21) Sivankutty v. John Thomas and Another.
With the above direction and observation the revision petition is dismissed. Office is directed to communicate this order to the concerned court, immediately.
Sd/-
K. Ramakrishnan, Judge // True Copy// P.A. to Judge ss