1. This revision petition is filed by the accused in C.C.No.799/2010 on the file of the Judicial First Class Magistrate Court-I, Cherthala and the appellant in Criminal Appeal No.224/2013 of Sessions Court, Alapuzha to set aside the orders under Section 397 of the Code of Criminal Procedure.
2. The case of the complainant in the complaint was that the husband of the accused was a subscriber to the chitty and he had bid the chitty and thereafter committed default in payment of the amount. An amount of Rs.1,21,688/- was due from him to the complainant. When this was intimated, the accused came to the office and had undertaken to pay the amount and issued Ext.P1 cheque in discharge of that liability. The cheque was presented for collection and the same was dishonoured for the reason 'funds insufficient', vide Ext.P2 dishonour memo dated 22.10.2009. This was intimated to the complainant as per Ext.P3 intimation memo. Thereafter, the complainant issued Ext.P4 notice evidenced by Ext.P5 postal receipt. The same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. She did not pay the amount. Ext.P8 is the payment voucher. Ext.P9 is the guarantee agreement executed by the revision petitioner and Ext.P10 is the statement of accounts which shows the amount due from the husband of the revision petitioner. Since the revision petitioner did not pay the amount the 1st respondent filed a complaint and it was taken on file by the learned Magistrate under Section 138 of the Negotiable Instruments Act (hereinafter called the Act).
3. When the accused appeared before the court below the particulars of offence were read over and explained to her and she pleaded not guilty. Pws 1 and 2 were examined on the side of the complainant and Ext.P1 to P10 were marked on their side. After closure of the complainant's evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and she denied all the incriminating circumstances brought against her in the complainant's evidence. She had further stated that blank signed cheque given by her was misused and present complaint has been filed. No evidence was adduced on her side in defence, except producing Ext.D1 pass book to prove that some amounts were paid. After considering the evidence on record, the trial court found that the revision petitioner is guilty under Section 138 of the Negotiable Instruments Act and convicted her thereunder and sentenced her to undergo imprisonment till raising of court and also to pay a compensation of Rs.1,01,100/- to the complainant, in default to undergo simple imprisonment for three months under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Criminal Appeal No.224/2013 before the Sessions Court, Alappuzha and the learned Sessions Judge by the impugned judgment dismissed the appeal, confirming the order of conviction and sentence passed by the court below. Dissatisfied with the same, the petitioner has come before this Court with the above revision petition.
4. On going through the concurrent judgments of the court below, this Court felt that this can be disposed at the admission stage itself dispensing with notice to the 1st respondent. 2nd respondent appeared through the public prosecutor.
5. The counsel for the revision petitioner submitted that the execution of the cheque has not been proved by the complainant and they have not proved that the cheque was issued in discharge of any legally enforceable debt as well. So, according to him, both the courts below were not justified in convicting the appellant for the offence alleged. Further, according to the counsel for the revision petitioner, the case of the accused is more probable that blank signed cheque obtained was misused and the present complaint was filed.
6. Learned Public Prosecutor supported the findings of the courts below.
7. It is an admitted fact that complainant is a company engaged in chitty business and the husband of the revision petitioner is a subscriber to one of the chitties of the complainant. It is also seen from Ext.P9 agreement produced on the side of the complainant that the present petitioner was a guarantor for the transaction. So it cannot be said that the petitioner has no connection with the transaction. The fact that the husband of the petitioner bid the citty and withdrawn the amount is evident from Ext.P8 payment voucher and also Ext.P10 statement of accounts coupled with evidence of PWs 1 and 2 will go to show that the amount mentioned in the cheque was due from the husband of the revision petitioner. Further, the evidence of PW1 and PW2 will go to show that the revision petitioner had come to the office and issued Ext.P1 cheque, undertaking the liability of her husband as a guarantor for the transaction. So, under the circumstances, it cannot be said that the cheque was not issued by the accused in discharge of any legally enforceable debt as contended by her.
8. Further, when a notice has been issued by the complainant intimating the dishonour and demanding payment of the amount, she had not sent any reply as well. Except producing Ext.D1 pass book showing some payment she had not adduced any evidence as well to show that the amount mentioned in the cheque is not really due. But Ext.P10 statement of accounts maintained by the 1st respondent shows that the amount was still due from the subscriber. So, under the circumstances, the courts below were perfectly justified in discarding the contentions raised by the revision petitioner that the cheque was not issued in discharge of any legally enforceable debt and the blank signed cheque was misused and rightly come to the conclusion that the cheque was issued in discharge of a legally enforceable debt undertaking the liability of her husband who is the subscriber to the chitty on the basis of the guarantee agreement executed by her and rightly come to the conclusion that she had committed the offence punishable under Section 138 of the Negotiable Instruments Act. I do not find any reason to interfere with the concurrent findings entered by the court below regarding the conviction.
9. As regards the sentence also, the courts below had only awarded cheque amount as compensation with a default sentence under Section 357(3) of the Code of Criminal Procedure apart from the substantive sentence of imprisonment till raising of court. So maximum leniency has been shown by the courts below in awarding the sentence as well. So I do not find any reason to interfere with the sentence imposed by the court below as well. So the revision is dismissed.
10. However, the counsel for the petitioner submitted that if six months time is granted, she will be able to pay the amount. But considering the fact that the case is of the year 2010 and also the Supreme Court also now recently held that disposal of cheque cases must be expedited at the earliest possible time, granting more time will only defeat purpose of the Act itself. But however, taking a lenient view, this Court feels that some time can be granted to the petitioner to pay the amount. So, four months time is granted to the petitioner from today to pay the amount or deposit the amount before the court below and appear before the court below and to serve the sentence. The petitioner is permitted to deposit or pay the amount on or before 17.09.2014 and till then lower court is directed to keep the execution of sentence in abeyance. If the petitioner did not pay the amount or deposit the amount as directed, then lower court is at liberty to proceed against the revision petitioner in accordance with law to execute the warrant.
With the above observations and directions, this revision petition is dismissed granting time to pay the amount to the revision petitioner as stated above.
Sd/-
K.RAMAKRISHNAN, JUDGE.
//TRUE COPY// P.A TO JUDGE DG