Accused in S.T.No.236/12 on the file of the Judicial First Class Magistrate Court, Chittur is the revision petitioner in Crl.R.P.No.2178/2014 and the same accused in S.T.No.3525/2011 on the file of the same court is the revision petitioner in Crl.R.P.No.2183/2014.
2. Both these cases were taken on file on the basis of two private complaints filed by the first respondent herein alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').
3. The common case of the complainant in those complaints are that the revision petitioner borrowed an amount of Rs.3,50,000/- and on 20.08.2011, he agreed to pay the amount in three installments and executed an agreement from the office of the wife of the complainant and since he failed to pay the amount, he filed O.S.No.407/11 before the Munsiff Court, Chittur for recovery of the amount and he had paid some amount and for the balance amount, he had issued Ext.P1 and P6 cheques for Rs.1,25,000/- each which when presented were dishonoured for the reason 'funds insufficient' evidenced by Ext.P2 and P7 dishonour memos and the same was intimated to the complainant by his banker evidenced by Exts.P3 and P8 intimation letters. The complainant issued Ext.P4 and P9 lawyer notices vide Exts.P4(a) and P9(a) postal receipts and both the notices were returned with endorsement 'unclaimed' evidenced by Ext.P5 and P13 returned notices. He had not paid the amount. So, he had filed two complaints which were taken on file as S.T.No.3525/11 and 236/2012 before the lower court.
4. When the revision petitioner appeared before the court below in both these cases, the particulars of offence were read over and explained to him and he pleaded not guilty. Both the cases were jointly tried and evidence was recorded in S.T.No.3525/11. The complainant was examined as PW1 and Exts.P1 to P13 and Exts.P4(a), P9(a) and P12(a) were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of 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 Rs.1,25,000/- and in fact, he had repaid more than Rs.7,00,000/- including interest and the cheque was not returned. In order to prove his case, the revision petitioner himself was examined as DW1 and his father in law was examined as DW2 and Ext.D1 was marked on his side.
5. After considering the evidence on record, the court below rejected the contentions of the revision petitioner and convicted him thereunder and sentenced him to undergo in each case imprisonment till rising of the court and also to pay a fine of Rs.1,25,000/- each in default to undergo simple imprisonment for three months and further directed to pay the fine amount if realised to be payable to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure (by mistake it is shown as 357(3) of Code of Criminal Procedure). Though appeals were filed as Crl.Appeal.No.406/2013 and 420/2013 before the Sessions Court, Palakkad, the learned Sessions Judge dismissed the appeals confirming the order of conviction and sentence passed by a common judgment. Aggrieved by the same, the above revisions have been filed.
6. Considering the scope of enquiry, 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 Public Prosecutor appearing for the second respondent and dispensing with notice to the first respondent in both the cases.
7. The Counsel for the revision petitioner submitted that the court below had not considered the evidence of DWs 1 and 2 properly and the conviction entered is not proper.
8. On the other hand, the learned Public Prosecutor supported the concurrent findings of the court below.
9. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.3,50,000/- and since he did not pay the amount, a suit was filed and later, the suit was compromised by entering into an agreement between the parties and in discharge of that liability, he had issued Ext.P1 and P6 cheques for Rs.1,25,000/- each. The case of the revision petitioner was that the blank signed cheques given was misused for the amount of Rs.1,25,000/- borrowed though he had repaid the amount. 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 on this aspect. Further, the fact that the revision petitioner had given Ext.P1 and P6 cheques were not in dispute. Further, it is also an admitted fact that there was some money transaction between them and the cheques were given in connection with the same. The case of the revision petitioner was one of discharge. In order to prove the same, DW1 and DW2 were examined. On going through the evidence of DW1 and 2, it will be seen that their case is not believable. Further, there is no acceptable evidence has been adduced on the side of the revision petitioner to prove the discharge pleaded by him. He did not receive the notice and send any reply. On the other hand, he was allowed to return the notices as 'unclaimed'. He had no case that he will not receive notice in that address. He did not obtain any receipt for payment of the amount as claimed by him as well. So, under the circumstances, courts below were perfectly justified in discarding the evidence of the revision petitioner regarding his case and come to the conclusion that that is not sufficient to disprove the case of the complainant and found him guilty under Section 138 of the Act in both the cases and rightly convicted him for the said offence and the concurrent findings of the court below on this aspect do not call for any interference.
10. As regards the sentence is concerned, courts below have only imposed imprisonment till rising of court and directed the revision petitioner to pay fine of Rs.1,25,000/- in each case with default sentence of three months and directed the fine to be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. It cannot be said to be excessive as well. So, the sentence also just and proper.
11. While this court was about to dispose of the revisions, the Counsel for the revision petitioner sought eight months time for payment of the amount. Considering the fact that the case is of the year 2011 and 2012 and also considering the amount, this court feels that the time sought for appears to be reasonable. So, the revision petitioner is granted time till 17.08.2015 to pay the amount. Till then, the execution of sentence is directed to be kept in abeyance. If the revision petitioner pays the amount covered by the two cases to the complainant directly and produces payment of receipts before the court below 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 and record the same in the respective registers as provided in the decisions reported 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 serve the substantive sentence in both the cases.
With the above direction and observation, the revisions are dismissed.
Office is directed to communicate this order to the concerned courts immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge