Accused in ST.No.15/2011 on the file of the Judicial First Class Magistrate Court-II, Vatakara, is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the first respondent –complainant against the revision petitioner alleging offence under section 138 of the Negotiable Instruments Act (herein after called the Act).
3. The case of the complainant in the complaint was that during August 2006, the revision petitioner and her husband approached the complainant for a loan of Rs.2,50,000/- for development of their business and agreed to pay share of profit and they have agreed to repay the amount within one year and he paid Rs.50,000/- as cash and issued cheque No.129281 dated 05.08.2006 drawn on Punjab National Bank, Nadapuram for an amount of Rs.2,00,000/- in favour of the revision petitioner. They encashed the amount and during 2007 again the revision petitioner approached the complainant and requested for another Rs.2,50,000/- on the same basis and he had issued a cheque No.129288 dated 10.07.2007 for Rs.2,50,000/- drawn on the same bank and that was also encashed. But he had not paid the amount nor paid the profit as claimed. When demanded, the profit was settled at Rs.85,000/- and she had agreed to pay Rs.5,85,000/- to the complainant and issued Ext.P1 cheque in discharge of that liability. The cheque when presented was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo. The complainant issued Ext.P3 notice dated 31.12.2008, on 01.1.2009 vide Ext.P4 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 she had committed the offence punishable under section 138 of the Act. Hence the complaint.
4. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P5 were marked on his side. After closure of the complainant’s evidence, revision petitioner was questioned under section 313 of the Code of Criminal Procedure (herein after called the Code) and she denied all the incriminating circumstances brought against her in the complainant’s evidence. She had further stated that the husband of the revision petitioner and the complainant were friends and they have some transaction and she used to give her signed cheques with her husband and he misused the cheque and handed over the same to the complainant and misusing the cheque, the present complaint has been filed. But no evidence was adduced on her side in defence. After considering the evidence on record, the trial court found the revision petitioner guilty under section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for three months and also to pay the fine of Rs.5,85,000/- in default to undergo simple imprisonment for two months more. It is further ordered that if the fine amount is realised, the same be paid to the complainant as compensation under section 357(1) (b) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.714/2012 before the Sessions Court, Kozhikode, which was made over to Additional Sessions Court Vatakara, for disposal and the learned Additional Sessions Judge by the impugned judgment allowed the appeal in part confirming the order of conviction and fine and direction to pay compensation out of fine amount but reduced the substantive sentence to imprisonment till rising of court. Aggrieved by the same, the present revision has been filed by the revision petitioner- accused before the court below.
5. Since, first respondent had appeared through counsel, this court felt that the revision can be admitted and can be disposed of on merit after hearing both sides today itself. So, the revision is admitted and heard both sides and disposed of today itself.
6. The counsel for the revision petitioner submitted that there is no evidence adduced on the side of the complainant to prove that he had the funds to pay the amount. Further, the case of the revision petitioner is more probable that the signed cheques handed over by her husband were misused for the transaction between her husband and the complainant and thereby she had rebutted the presumption and the courts below were not justified in convicting the revision petitioner for the offence alleged especially when the execution and handing over the cheques were denied by her.
7. The counsel for the revision petitioner relied on the decision reported in Padmanabhan Vs. Vasudevan Namboodiri [2010 KHC 6223] and also the decision of the Supreme Court reported in K.Subramani Vs. K.Damodara Naidu [2014(4) KHC 533 (SC)] in support of her case.
8. On the other hand, counsel for the first respondent submitted that the amount was paid to the revision petitioner by cheques and that were encahsed by her and she did not adduce any evidence to prove her case. So in the absence of any evidence adduced, the courts below were justified in relying on the presumption available and rightly convicted her for the offence alleged. The Public Prosecutor supported the submission of the counsel for the first respondent.
9. The case of the complainant in the complaint was that revision petitioner borrowed Rs.5,00,000/- on two occasions with an understanding that she will pay the share of profit in the jewellery business conducted by her and her husband and both of them came for this purpose. He had paid Rs.50,000/- by cash and Rs.4,50,000/- by two cheques on two occasions and they were encashed by them. Since, they did not pay the amount and the profit as promised, when demanded, the matter was talked over and they have agreed to pay Rs.85,000/- towards the profit payable and the revision petitioner had issued Ext.P1 cheque for Rs.5,85,000/- in favour of a complainant in discharge of that liability. The case of the revision petitioner was one of total denial. In order to prove the case of the complainant, 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 regarding this aspect. The fact the cheques given by the complainant were encashed by the revision petitioner was not disputed as well. She did not send any reply to the notice sent by the complainant when the dishonour of the cheque was intimated to her. She did not adduce any independent evidence to prove her case as well. Nothing was brought out to probablise her case in the evidence of the complainant as well.
10. There is no dispute regarding the proposition laid on in the decision reported in Padmanabhan V Vasudevan Namboodiri [2010 KHC 6223] where it has been observed that Section 139 of the Act provides that it shall be, presumed unless the contrary is proved, that the holder of the cheque who received the cheque of the nature referred to in Section 138 of the Act for discharge of in whole or part of any debt or other liability. The presumption so provided under section 139 of the Act shall be drawn in a case where the accused either admits the drawing of the cheque or the complainant established that it was drawn by the accused. If there is no admission and there is no proof of execution of the cheque, the presumption provided under section 139 cannot be drawn and it must be independently proved. In that case no evidence was adduced on the side of the complainant to prove these facts. But in this case, the complainant had gone into the witness box and stated that the amounts were paid by cheque to the revision petitioner. He had also stated that the cheque was duly brought duly filled up and she singed the cheque in his presence and handed over the same to him. This aspect has not been seriously challenged in cross examination. Non sending reply to the notice issued also goes to a long way to come to the conclusion that the revision petitioner had nothing to say about the transaction and that was the reason why no reply was sent to the notice issued.
11. Further, the decision reported in K.Subramani Vs K.Damodara Naidu [2014(4) KHC 533 (SC)] by the Hon’ble Supreme Court has held that if the financial capacity of the complainant to pay the amount has been challenged and if it is not proved to the satisfaction of the court, then the court can view the same in a suspicious manner that the complainant had failed to prove his case and that benefit must be given to the accused. But, in this case, no such thing arises as the amounts were paid by issuing cheques which were encashed by the revision petitioner. So, under the circumstances, the above two dictum are not applicable to the facts of this case.
12. Further, the Three Bench of the Hon’ble Supreme Court in the decision reported in Rangappa V Mohan [2010 (2) KLT 682], observed that the presumption mandated by section 139 includes the existence of legally enforceable debt or liability. This is in the nature of rebuttable presumption and it is open to the accused to raise the defence wherein the existence of legally enforceable debt or liability can be contested. Further, in the same decision, it has been observed that unless satisfactory evidence has been adduced by the accused to rebut the presumption, the court shall draw the presumption available under section 139 of the Act. In this case, no evidence has been adduced on the side of the revision petitioner to prove her case and she did not send any reply to the notice issued by the complainant as well. So, under the circumstances, the courts below were perfectly justified in coming to the conclusion that the revision petitioner had issued Ext.P1 cheque in discharge of her liability for the amount mentioned in the cheque which is due from her to the complainant and rightly convicted her for the offence alleged under section 138 of the Act and the concurrent findings of the courts below do not call for any interference.
13. As regards the sentence is concerned, though the trial court had sentenced her to undergo simple imprisonment for three months and also to pay the cheque amount of Rs.5,85,000/- as fine with default to undergo simple imprisonment for two months more and direction to pay the fine amount if it is realised, to the complainant as compensation under section 357(1) (b) of the Code of Criminal Procedure, the appellate court had reduced the substantive sentence to imprisonment till rising of court. Maximum leniency has been shown by the appellate court in imposing the sentence as well and imposing the cheque amount as fine cannot be said to be excessive as well. So, under the circumstances, no interference is called for on this aspect as well as it appears to be just and proper.
14. While this court was about to dispose of the case, the counsel for the revision petitioner submitted that the revision petitioner is a lady and considering the amount involved, she prayed one year time for payment of the amount, which was opposed by the counsel for the first respondent on the ground that the case is of the year 2009. Further, considering the amount involved, this court feels that nine months time can be granted to the revision petitioner to pay the amount. So, the revision petitioner is granted time till 17.08.2015 to pay the amount. Till then the execution of the sentenced is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and the revision petitioner produces proof of such payment before the court below and if it is acknowledged by the complainant by appearing before that court, then the court below is directed to treat the same as substantial compliance of payment of compensation out of fine as ordered by the court below and confirmed by this court and record the same in the respective registers and allow the revision petitioner to serve the substantive sentence of imprisonment till rising of court alone as provided in the decision reported in Beena V. Balakrishnan Nair and Another [2010(2) KLT 1017] and Sivankutty V. John Thomas and Another [2012(4) KLT 21].
With the above directions and observations, the revision is dismissed. Office is directed to communicate this order to the concerned court immediately.
Sd/- K.RAMAKRISHNAN, JUDGE R.AV //True copy// PA to Judge