Accused in S.T.No.1188/2007 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.3,25,000/- and in discharge of her liability, she had issued Ext.P1 blank signed cheque. 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 17.02.2007 on the same day vide Ext.P5 postal receipt and the same was received by the accused on 19.02.2007 evidenced by Ext.P6 postal acknowledgment and the accused had not paid the amount and 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 her side. After closure of the complainant’s evidence, the accused 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 she had borrowed a sum of Rs.25,000/- from the complainant during January 2007 and issued a blank signed cheque and she repaid Rs.20,000/- but he demanded huge interest. The blank signed cheque was misused and the present complaint was filed. 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 6 months and to pay a fine of Rs.3,25,000/- 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.152/2009 before the Sessions Court, Pathanamthitta and the same was made over to the Additional Sessions Court-I, Pathanamthitta for disposal and the learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction but modified the sentence to imprisonment till rising of court and pay a fine of Rs.3,30,000/- in default to undergo simple imprisonment for 6 months and directed the fine amount if realised to be paid to the complainant as compensation. Aggrieved by the same, the present petition has been filed by the revision petitioner.
5. Since the second respondent had appeared through counsel in the delay condonation application and proposed 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 is admitted.
6. Heard both sides.
7. The learned counsel appearing for the revision petitioner submitted that the court below had not properly appreciated the evidence and the suggestion given would go to show that the case of the accused is more probable.
8. On the other hand, the counsel for the second respondent submitted that there is no evidence adduced on the side of the revision petitioner to rebut the presumption and the concurrent findings on facts do not require 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.3,25,000/- and issued Ext.P1 cheque in discharge of that liability. The case of the accused was that she borrowed only Rs.25,000/- and issued a blank signed cheque as security and repaid Rs.20,000/- and misusing the cheque, the complaint was filed. 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 the complainant has proved the execution of the cheque, then it is for the accused to prove that the cheque was issued as security and discharge pleaded by her. In this case, no such evidence was adduced on the side of the accused. She had no case that the legal formalities are not complied by the complainant 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 finding of the court below on fact 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, though the trial court imposed six months imprisonment and fine amount of Rs.3,25,000/ with default sentence, that was modified by the appellate court by imposing imprisonment till raising of court and to pay an amount of Rs.3,30,000/- in default to undergo simple imprisonment for 6 months. It was further ordered to pay the fine amount to the complainant as compensation under section 357(1) of the Code. Maximum leniency has been shown by the appellate court the appellate court while imposing the sentence as well. I do not find any reason to interfere with the sentence imposed by the court below as modified by the Sessions Court as it is just and proper. While disposing the revision the learned counsel for the petitioner seeks time for payment of the amount. Considering the amount involved in the case, this Court feels that six months’ time can be granted to the revision petitioner to pay or deposit the amount. So the revision petitioner is directed to pay or deposit the amount on or before 17.04.2015 till then the execution of sentence is directed to be kept in abeyance. If she is in custody, the court below is directed to issue release order as six months’ time is granted by this court for payment of the amount.
With the above observation and direction the revision petition is dispsoed of. Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.RAMAKRISHNAN, JUDGE R.AV