Accused in S.T. No. 2004/2007 on the file of Judicial First Class Magistrate Court–I, Pathanamthitta is the revision petitioner herein.
2. The above complaint was taken on file on the basis of a private complaint filed by the 1st respondent before the Judicial First Class Magistrate Court–I, Pathanamthitta under Section 138 of the Negotiable Instruments Act (hereinafter called “the Act”). The case of the complainant in the complaint was that accused availed a loan for the purpose of purchasing a vehicle and thereafter committed default in payment of the amount and in order to discharge his liability, he had issued Ext.P2 cheque for an amount of Rs.1,13,819/- dated 30.04.2007 drawn on Pathanamthitta District Co-operative Bank Limited in favour of the complainant. The cheque when presented was dishonoured for the reason 'funds insufficient' vide Ext.P3 dishonour memo dated 24.05.2007 and this intimated to the complainant by their banker vide Ext.P4 intimation letter dated 28.05.2007. The complainant issued Ext.P5 notice dated 15.06.2007 on the same day vide Ext.P6 postal receipt and the same was received by the complainant evidenced by Ext.P7, but he had not paid the amount. So he had committed the offence punishable under Section 138 of the Act.
3. When the accused appeared before the Court below, the particulars of offences were read over and explained to him by the learned Magistrate and he pleaded not guilty. In order to prove the case of the complainant, PWs 1 and 2 were examined and Exts.P1 to P7 were marked on their side. After closure of the complainant's evidence, the accused 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 the amount is not due and he has not issued the cheque. No evidence was adduced on his side in defence. After considering the evidence on record, the learned Magistrate found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for 9 months and also to pay a compensation of Rs.1,15,000/- to the complainant, in default to undergo simple imprisonment for 2 months under Section 357(3) of Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl. Appeal No. 184/2013 before the Sessions Court, Pathanamthitta and the learned Sessions Judge by the impugned order, allowed the appeal in part confirming the order of conviction but modifying the sentence by sentencing the revision petitioner to undergo imprisonment till raising of the Court and also to pay a compensation of Rs.1,13,819/- to the complainant, in default to undergo simple imprisonment for 2 months more under Section 357(3) of Code of Criminal Procedure which is being challenged by the revision petitioner in this revision petition.
4. The 1st respondent appeared through counsel. So, the revision was formally admitted and disposed of after hearing both the sides on merit.
5. Learned counsel for the revision petitioner submitted that the courts below failed to appreciate the fact that execution of cheque has not been proved and the liability has not been established. So, the offence under Section 138 is not attracted. But on the other hand, learned counsel for the respondent submitted that no contra evidence has been adduced and no illegality has been committed by the courts below in passing the order of conviction.
6. The case of the complainant was that the accused availed a loan for the purpose of purchasing a vehicle and he committed default and an amount of Rs.1,13,819/- was due and in discharge of that liability, he issued Ext.P2 cheque. The case of the revision petitioner was that such amount was not outstanding and some blank cheque given was misused and the present complaint has been filed. In order to prove the case of the complainant, PWs 1 and 2 were examined and both of them have categorically stated regarding the money transaction and issuance of Ext.P2 cheque by the revision petitioner. Once the execution of cheque has been proved by the complainant, burden is on the accused to prove that it is not issued in discharge of any liability. If such an evidence is not adduced, then the presumption of Sections 118 and 139 of the Act will be attracted. Lower Court had relied on the decisions reported in Rangappa Vs. Mohan (2010 AIR SCW 2946), Johnson Scaria Vs. State of Kerala (2006 (4) KLT 290), Devan Vs. Krishna Menon (2010 (2) KLT 397), P. Gopakumar Vs. B. Anilkumar & Another (2011 (4) KLJ 82), Dr. Jyoti Prasad Bhat Vs. K. Sundra Rajan and another (ILR 2013(3) Kerala 557 for the above proposition and rightly come to the conclusion that the complainant had proved that Ext.P2 cheque was issued in discharge of legally enforceable debt, in the absence of any evidence adduced on the side of the accused regarding this aspect, relying on the evidence of PWs. 1 and 2 and also the presumptions available under Section 118 and 139 of the Act. Further, the petitioner has no case that legal formalities have not complied with. He had not sent any reply to the notice issued as well. So under the circumstances, courts below were perfectly justified in coming to the conclusion that the revision petitioner had committed the offence punishable under Section 138 of the Act and rightly convicted him for the above offence and the concurrent findings of the courts below do not call for any interference.
7. As regards the sentence concerned, lower court sentenced the revision petitioner to undergo simple imprisonment for 9 months and also to pay a compensation of Rs.1,15,000/-, in default to undergo simple imprisonment for 2 months. But the learned Sessions Judge reduced the imprisonment till raising of Court and also the compensation to the cheque amount of Rs.1,13,819/- with default sentence of 2 months. So maximum leniency has been shown by the appellate court in awarding sentence also. So I do not find any reason to interfere with the sentence imposed by the court below as well. But however, when disposing the revision, learned counsel for the revision petitioner seeks time to deposit the amount and wanted 'six' months' time to pay the amount; but granting time was opposed by the learned counsel for the 1st respondent.
Considering the amount involved, this Court feels that 'six' months' time can be granted to the petitioner to deposit the amount. The petitioner is directed to either deposit the amount in court or pay the amount directly to the complainant and produce proof of such payment before the court below regarding the payment with the presence of the counsel for the complainant on or before 13.04.2015 and if the amount is not paid within that time and he surrenders before the court below to receive the sentence, then the court below is at liberty to execute the conviction warrant against the petitioner. Till then, the execution of sentence is directed to be kept in abeyance by the court below.
With the above observation, this revision petition is dismissed.
Sd/-
K. RAMAKRISHNAN, JV JUDGE