Accused in S.T.No.762/2007 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.1,90,000/- and in discharge of her liability, she had issued Ext.P1 cheque dated 16.03.2007 in favour of the complainant. The complainant presented the cheque for collection and the same was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo dated 20.03.2007 and this was intimated to the complainant by the banker vide Ext.P3 intimation letter dated 22.3.2007. The complainant issued Ext.P4 notice dated 28.03.2007 on the same day vide Ext.P5 postal receipt and the same was received by the accused on 02.04.2007 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 she had borrowed a sum of Rs.50,000/- from the complainant on 25.02.2007 and gave a blank signed cheque as security and she repaid Rs.40,000/- but he is not prepare to receive the balance amount and demanded exorbitant interest and misusing the cheque, the present complaint was filed. No defence evidence was adduced on her side. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for 6 months and also to pay a fine of Rs.1,90,000/- 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.94/2010 before the Sessions Court, Pathanamthitta which was made over to the Additional Sessions Court No.I, Pathanamthitta for disposal and the learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction and sentence of fine but reduced the substantive sentence to imprisonment till rising of court and enhanced the default sentence to six months. Aggrieved by the same, the present revision 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 after hearing both sides. So the revision petition is admitted.
6. Heard both sides.
7. The learned counsel appearing for the revision petitioner submitted that the evidence adduced on the side of PW1 is not sufficient to attract the offence of 138 of the Act and the evidence will go to show that the case of the accused is more probable than the case of the complainant and the offence under section 138 of the Act is not attracted and the court below has not committed any illegality not in properly appreciating the evidence.
8. The counsel for the first respondent submitted that there is no illegality committed by the courts below and no rebuttal evidence has been adduced on the side of the accused and so the courts below were perfectly justified in convicting the accused for the offence alleged and no interference called for.
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.1,90,000/- and in discharge of her liability, she had issued Ext.P1 cheque. The case of the accused was that she borrowed Rs.50,000/- and issued a blank signed cheque as security and repaid Rs.40,000/- and the complainant was not prepared to receive the balance amount as he wanted exorbitant interest and misusing the cheque, the present 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 regarding the accused borrowing the amount and issuing the cheque in discharge of her liability. No defence evidence was adduced on the side of the accused to prove that she borrowed only Rs.50,000/- and repaid Rs.40,000/- and the cheque was given as a blank signed cheque as security for the transaction. In the absence of any evidence adduced on the side of the accused on this aspect, the courts below were perfectly justified in relying on the evidence of PW1 and the statutory presumption available under section 118 and 139 of the Act and rightly coming to the conclusion that the accused had committed the offence punishable under section 138 of the Act and rightly convicted her for the said offence and the concurrent findings of the court below on this aspect do not call for any interference as it does not suffer any infirmity or illegality.
11. As regards the sentence is concerned, though the trial court sentenced to undergo simple imprisonment for six months and also to pay the fine amount of Rs.1,90,000/ in default to undergo simple imprisonment for 3 months, the appellate court had reduced the substantive sentence to imprisonment till rising of court and enhanced default sentence for non payment of fine to six months from three months. The fine amount realised was directed to be paid to the complainant as compensation under section 357(1)(b) of the Code. The appellate court has shown maximum leniency in imposing the sentence. I do not find any reason to interfere with the sentence imposed by the court below as well as it is just and proper. While disposing the revision petition the counsel for the revision petitioner sought six months time for payment of the amount. This was opposed by the counsel for the respondent. Considering the amount involved and also considering the fact that the revision petitioner is a lady, this court feels that six months time can be granted for payment of the amount. So six months’ time is granted to the revision petitioner to pay the amount. Revision Petitioner is directed to pay the amount on or before 17.04.2014 till then the court below is directed to keep the execution of sentence in abeyance. If she has already been arrested and detained in prison, the court below is directed to release her from jail With the above observation and direction the revision petition is disposed of. Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.RAMAKRISHNAN, JUDGE R.AV