Accused in S.T.No.155/2011 on the file of Judicial First Class Magistrate Court, No-II, Karunagappally is the revision petitioner herein.
2. The case was taken on the basis of a private complaint filed by the second respondent - complainant against the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act. (hereinafter called 'the Act')
3. The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs.95,000/- and in discharge of that liability, he had issued Ext.P1 cheque dated 20.12.98. The cheque when presented was dishonoured for the reason 'funds insufficient' vide Ext.P2 dishonour memo dated 16.04.99 and the same was intimated to the complainant vide Ext.P3 intimation letter dated 17.04.99. The complainant issued Ext.P4 notice dated 23.04.99 on the same date vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. The accused had not paid the amount. So, he had committed the offence punishable under Section 138 of the Act. Hence the complaint.
4. When the revision petitioner appeared before the court below, the particulars of offences were read over and explained to him and he 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 revision petitioner was questioned under Section 313 of Code of Criminal Procedure and he denied all the incriminating circumstances brought against him. He had further stated that he had borrowed an amount of Rs.20,000/- from the common friend of the complainant and the accused one Ramakrishnan and he had paid the amount. Since he had entrusted the cheque to the father of the complainant, the cheque could not be returned. The father of the complainant and the complainant colluded together and the present complaint has been filed. In order to prove his case, the said Ramakrishnan was examined as DW1.
5. After considering the evidence on record, the court below found that the case of the revision petitioner is not believable and found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for four months and also to pay the cheque amount of Rs.95,000/- as fine in default to undergo simple imprisonment for one month. It is further ordered that, if the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal.No.144/12 before the Sessions Court, Kollam which was made over to the IV Additional Sessions Court for disposal 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 has been filed by the revision petitioner – accused before the court below.
6. Since the second respondent had appeared on admission, this court felt that the revision can be admitted and disposed of on merit after hearing both sides today itself. So, the revision is admitted and heard both sides and disposed of today.
7. The Counsel for the revision petitioner submitted that the revision petitioner had examined DW1 to prove his case that there was no transaction between the complainant and the revision petitioner and the cheque given by the revision petitioner to said Ramakrishnan examined as DW1 was handed over to the father of the complainant Gopalakrishna Pillai and misusing the cheque, the complaint was filed and there is no acceptable evidence adduced on the side of the complainant to prove the execution and as such, he had rebutted the presumption and the courts below were not justified in convicting the revision petitioner for the offence alleged.
8. On the other hand, the Counsel appearing for the second respondent submitted that, no reply was issued to the notice issued when cheque was dishonoured and the evidence of DW1 is not believable and so, the courts below were perfectly justified in rejecting the evidence of DW1 and rightly convicted the revision petitioner for the offence alleged.
9. The case of the complainant in the complaint was that, the revision petitioner borrowed a sum of Rs.95,000/- and in discharge of that liability, Ext.P1 cheque was issued. But, the case of the revision petitioner was one of total denial.
His case was that he borrowed a sum of Rs.20,000/- from DW1 - Ramakrishnan and he had paid the amount. Since the cheque was not with him and handed over to Gopalakrishna Pillai - the father of the complainant, he could not return the cheque and misusing the cheque, the present complaint was filed. It is settled law that once the execution of the cheque is denied, then, the burden is on the complainant to prove the execution of cheque which can be proved by examining the complainant himself or other methods known to law. In this case, the complainant had gone to the witness box and deposed that the revision petitioner borrowed the amount and issued Ext.P1 cheque. He denied the suggestion that the cheque handed over to his father by DW1 was misused and the present complaint was filed. Though he was cross examined at length, nothing was brought out to discredit his evidence on this aspect. It is true that the DW1 was examined on the side of the revision petitioner to prove his case. But, the evidence of DW1 will go to show that he is now giving evidence to help the revision petitioner. He was not remembering the date on which the amount was borrowed by the revision petitioner and when the cheque was given and when the repayment was made and when the cheque was handed over to the father of the complainant. He had also admitted that he had not taken any steps to get back the cheque from the father of the complainant and hand over the same to the revision petitioner though he had alleged to have received the amount said to have been borrowed from him. So, under the circumstances, the dictum laid down in the decision reported in Bhaskaran Nair Vs. Mohanan [2009 (3) KLT 580] relied on by the Counsel for the petitioner is not applicable to the facts of this case. Further, the revision petitioner had not issued any reply notice to the notice issued by the complainant as well. Further, the provisions of the Income Tax Act is not applicable to the case under Section 138 of the Act and even if there is any violation, the authorities can proceed against them under that Act. So, under the circumstances, courts below were perfectly justified in coming to the conclusion that the revision petitioner had borrowed the amount and issued Ext.P1 cheque in discharge of that liability and the concurrent findings of the court below on this aspect do not call for any interference.
10. The Counsel for the revision petitioner submitted that the sentence imposed is harsh. The trial court had sentenced the revision petitioner to undergo simple imprisonment for four months and also to pay the cheque amount for Rs.95,000/- as fine in default to undergo simple imprisonment for one month and further directed to pay the fine amount if realised to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. This was confirmed by the appellate court as well.
11. The Honourable Apex court has held in several decisions that cases under Section 138 of the Act is purely a civil nature, but a criminal colour has been given in view of the same being incorporated under the Negotiable Instruments Act. What was intended by the legislature is to see that the amount is paid by the drawer of the cheque and realise the amount and pay the same to the complainant and not with an intention to send him to jail. So, considering the circumstances and also considering the fact that the cheque amount has been imposed as fine and it was directed to be paid to the complainant as compensation, this court feels that the substantive subsentence of four months imprisonment can be reduced to imprisonment till rising of court and the default sentence can be enhanced to three months simple imprisonment instead of one month imprisonment and some time can be given to the revision petitioner to pay the amount as well. So, the sentence is modified as follows:
Revision petitioner is sentenced to undergo imprisonment till rising of court and also to pay a fine Rs.95,000/- in default to undergo simple imprisonment for three months. If the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Four months time is granted to the revision petitioner to pay the amount. So, the revision petitioner is granted time till 04.03.2015 to pay the amount either directly to the complainant or deposit the amount before the court below. The amounts already deposited will be given credit to the same and the revision petitioner need pay only the balance amount within the above time. The amount if any deposited before the court below is directed to be paid to the complainant by the court below without delay. If the revision petitioner pays the balance amount to the complainant directly and produces proof of payment of the same and the complainant appearing before the court below and acknowledging the same, then, the court below is directed to treat the same as substantial compliance and record the same in the respective registers as provided in the decisions reported in Beena Vs. Balakrishnan Nair and Another [2010 (2) KLT 1017] and Sivankutty Vs. John Thomas and Another [2012 (4) KLT 21] and permit the revision petitioner to undergo the substantive sentence of imprisonment till rising of court. Till then, the execution of sentence is directed to be kept in abeyance.
With the above modification of sentence and directions, the revision petition is allowed in part.
Office is directed to communicate this order to the court below at the earliest.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge