Accused in S.T.No.2312/2007 on the file of the Judicial First Class Magistrate Court-I, Pathanamthitta is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant alleging offence under section 138 of Negotiable Instrument Act (hereinafter called the Act). 2. The case of the complainant in the complaint was that the accused borrowed a sum of Rs.2,85,000/- and in discharge of her liability, she had issued Ext.P1 cheque dated 10.05.2007. The cheque when presented was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo and it was intimated to the complainant by the banker vide Ext.P3 intimation letter. The complainant issued Ext.P4 notice on 09.10.2007 on the same day vide Ext.P5 postal receipt and the same was received by the accused on 10.10.2007 evidenced by Ext.P6 postal acknowledgment and the accused had not paid the amount. So she had committed the offence punishable under Section 138 of the Act.
3. When the accused appeared before the court below, the particulars of the 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 P6 were marked on his side. After closure of the complainant’s evidence, the accused was questioned under section 313 of the Code of Criminal Procedure (hereinafter called the Code) and she denied all the incriminating circumstances brought against her in the complainant’s evidence. She had further stated that there was no transaction between the accused and the complainant. No defence evidence was adduced on her side. After considering the evidence on record, the court below found that the revision petitioner is guilty under Section 138 of the Act, convicted her thereunder and sentenced her to undergo simple imprisonment for 5 months and also to pay a fine of Rs.2,85,000/- in default to undergo simple imprisonment for 3 months more. It is further ordered that if the fine amount is realised, the same was directed to be paid to the complainant as compensation under section 357 (1) (b) of the Code.
4. Aggrieved by the same, the revision petitioner filed Criminal Appeal No.95/2010 before the Sessions Court, Pathanamthitta which was made over to the Additional Sessions Court No.I, and the learned Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed by the court below. Aggrieved by the same, the present revision petition has been filed by the revision petitioner.
5. Since the second respondent has appeared through counsel in the delay condonation application and expressed his willingness to appear in the revision also, this court felt that the revision petition can be admitted and can be disposed of on merit today itself. So the revision petition is admitted.
6. Heard both sides.
7. The learned counsel appearing for the revision petitioner submitted that the evidence of PW1 is not sufficient to prove the case against the accused and the offence of 138 of the Act has not been attracted and the court below has committed serious illegality and irregularity in misappreciating the evidence and convicting her for the offence alleged.
8. On the other hand, the counsel for the second respondent submitted that there is no rebuttal evidence adduced to rebut statutory presumption under section 139 of the Act and concurrent findings of the court below do not call for any interference.
9. Heard the learned Public Prosecutor also.
10. The case of the complainant in the complaint was that the accused borrowed a sum of Rs.2,85,000/- and discharge of her liability, she had issued Ext.P1 cheque. The case of the accused was one of total denial. 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 these aspects. Once it is proved by the complainant that the accused had issued a cheque in discharge of her liability, the burden shifts to the accused to prove that it was not issued in discharge of her liability. In the absence of any such evidence, the presumption under section 118 and 139 of the Act will be attracted and it shall be presumed that it was issued in discharge of her liability. The accused had no case that the legal formalities are not complied before filing the complaint. So, under the circumstances, and in the absence of evidence adduced on the side of the accused to prove her case, the courts below were perfectly justified in coming to the conclusion that the accused had committed the offence punishable under section 138 of the Act and the concurrent findings of the court below on this aspect do not call for any interference as no illegality has been committed by the court below on this aspect.
11. As regards the sentence is concerned, the trial court had imposed the sentence of five months imprisonment and also to pay the fine amount of Rs.2,85,000/ in default to undergo simple imprisonment for 3 months and directed to realise the fine amount to pay the complainant as compensation and this was confirmed by the appellate court. Considering the fact that offence under section 138 of the Act is purely a quasi civil nature which has become a criminal offence by virtue of introduction of section 138 under this statute and the purpose of the Act is to make the accused to pay the amount instead of sending him to jail. So, considering the circumstances, this court feels that directing the accused to undergo imprisonment till rising of the court and confirming the fine amount and directed to pay as compensation will be sufficient and that will meet the ends of justice. So, substantive sentence of five months simple imprisonment imposed by the court below is set aside and the same is modified as follows:
The revision petitioner is sentenced to undergo imprisonment till rising of court and also to pay a fine of Rs.2,85,000/- in default to undergo simple imprisonment for three months. If the fine amount is realised the same to be paid to the complainant as compensation under section 357 (1) (b) of the Code. The counsel for the revision petitioner prays time to pay the amount this was opposed by the respondent. Considering the amount involved this court feels that six months’ time can be granted to the petitioner to pay the amount. So the revision petitioner is granted time till 17.04.2015 to pay the amount till then the execution of sentence is directed to be kept in abeyance. If the revision petitioner is already under custody, the lower court is directed to release her immediately.
With the above modification of the sentence and time granted, the revision petition is partly allowed. Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.RAMAKRISHNAN, JUDGE R.AV