Accused in C.C.No.67/2010 on the file of the Judicial First Class Magistrate Court, No-II, Palakkad is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the complainant 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.1,00,000/- and in discharge of that liability, he had issued Ext.P1 and P2 cheques for Rs.50,000/- each which when presented were dishonoured for the reason 'Account closed' evidenced by Ext.P3 and P3(a) dishonour memos and it was intimated to the complainant by her banker vide Ext.P4 and P4(a) intimation letters. The complainant issued Ext.P5 and P5(a) notices vide Ext.P5(b) and P5(c) postal receipts and the same were returned with endorsement 'unclaimed' evidenced by Ext.P6 and P6(a) returned notices. The revision petitioner 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 offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant herself was examined as PW1 and Exts.P1 to P6 were marked on her 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 in the complainant's evidence. He had further stated that he had not received the notice and the amount was not due. In order to prove his case, the revision petitioner himself was examined as DW1 and Ext.D1, D1(a) and D1(b) were marked on his side.
5. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for six months and also to pay the cheque amount of Rs.1,00,000/- as compensation under Section 357(3) of Code of Criminal Procedure in default to undergo simple imprisonment for three months more.
Aggrieved by the same, he filed Crl.Appeal.No.515/2011 before the Sessions Court, Palakkad which was made over to Additional Sessions Court, Adhoc-I, Palakkad for disposal and the learned Additional Sessions Judge confirmed the order of conviction and direction to pay compensation, but, reduced the substantive sentence to three months simple imprisonment. Aggrieved by the same, the present revision has been filed.
6. Though notice was issued to the first respondent on admission, she did not appear. Considering the scope of enquiry and nature of defence raised, this court felt that the revision can be disposed of at the admission stage itself after hearing the Counsel for the revision petitioner and the Public Prosecutor appearing for the State dispensing with further notice to the first respondent.
7. The Counsel for the revision petitioner submitted that the evidence adduced on his side will go to show that the cheque was not issued in discharge of any liability and there was no proper service of notice and the sentence imposed is harsh.
8. On the other hand, the learned Public Prosecutor supported the concurrent findings of the court below and submitted that it does not call for any interference.
9. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.1,00,000/- and in discharge of that liability, he had issued Ext.P1 and P2 cheques. But, the case of the revision petitioner was one of total denial. His case was that there was no transaction between them and he was summoned to Mankara police station and obtained three blank signed cheques from him by force and two of such cheques were misused and the present complaint was filed and at the time when the notice was alleged to have been issued, he was in Gulf. So, there is no proper service of notice. In order to prove the case of the complainant, the complainant herself was examined as PW1 and she deposed in support of her case in the complaint. She had further stated that she knew the revision petitioner for long time and she was working in Gulf for three years and she had paid the amount to the revision petitioner with the income she derived while she was working in Gulf. Though she was cross examined at length, nothing was brought out to discredit her evidence on this aspect. Though the revision petitioner had a case that he was summoned to the police station and the cheques were obtained by force, no attempt was made to summon such document from the police station to prove this fact. Further, he did not take any steps against the revision petitioner for obtaining such cheques from the police station by force. He did not issue any stop memo to the bank also stating this fact. So, all these things will go to show that the case of the revision petitioner is not probable or believable. The court below had relied on the decisions reported in Rangappa Vs. Mohan [2010 (2) KLT 682 (SC)], General Auto Sales Vs. Vijayalakshmi [2005 (1) KLT 478], Ajithkumar Vs. Rejinkumar and another [ILR 2009 (3) Kerala 43] and came to the conclusion that complainant had proved the case against the revision petitioner that the cheques were issued in discharge of a legally enforceable debt.
10. As regards the service of notice is concerned, the notices were issued in the correct address and they were returned with endorsement 'unclaimed'. It is true that the revision petitioner had produced his passport and the entries will to to show that he came to airport on 04.07.2014 and left on 05.07.2014. But, Ext.P6 shows that the intimation was given on 04.07.2014. So, he had knowledge about the sending of the registered notice. He had not claimed the same. So, under the circumstances, courts below were perfectly justified in relying on the decisions reported in Pothen Joseph Vs. Chandra Bhanu [2013 (2) KLT SN 151 (C.No.190)], Alavi Haji C.C. Vs. Palapetty Muhammed and Others [ILR 2007 (3) Kerala 203 SC] and observed that there was proper service of notice. So, under the circumstances, courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below on this aspect do not call for any interference.
11. As regards the sentence is concerned, court below had sentenced him to undergo simple imprisonment for six months and also to pay the cheque amount of Rs.1,00,000/- as compensation in default to undergo simple imprisonment for three months more under Section 357(3) of Code of Criminal Procedure. The appellate court had though confirmed the compensation portion of the sentence, but, reduced the substantive sentence to three months simple imprisonment.
12. Though the lower court had relied on the decision of the Hon'ble Supreme Court on the question of sentence in the case of offences under Section 138 of the Act namely, Damodar S. Prabhu Vs. Sayed Babalal H. [2010 (2) KLT 587 (SC)] and Vijayan Vs. Baby [2011 (4) KLT 355 (SC)] and Kaushalya Devi Massand Vs. Roopkishore [AIR 2011 SC 2566] the Court below had only imposed the cheque amount as compensation and imposed six months imprisonment which was reduced to three months by the appellate court. But, in the decision reported in Somnath Sarkar Vs. Utpal Basu Mallick [2013 (4) KLT 350 (SC)], the Hon'ble Supreme Court has held that there is no provision for payment of compensation under the Negotiable Instruments Act for the offence under Section 138 of the Act, but, court has got power to impose double the cheque amount as fine and if the fine is quantified, then, compensation can be awarded out of the fine amount. Further, in the above decisions, it has been observed that if adequate fine is imposed and compensation is paid out of fine, then, substantive sentence is not compulsory. So, considering the above principles, this court feels that the substantive sentence of three months simple imprisonment imposed by the court below appears to be on the higher side and that can be reduced to imprisonment till rising of court, but, at the same the fine amount can be fixed Rs.1,10,000/- with default sentence of three months simple imprisonment and directing to pay the fine if realised to be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure will be sufficient and that will meet the ends of justice. So, the sentence imposed by the court below as modified by the appellate court 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.1,10,000/- 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. Five months time is granted to the revision petitioner to pay the amount. So, the petitioner is directed to pay the amount on or before 19.05.2015. Till then, the execution of sentence is directed to be kept in abeyance.
If the revision petitioner pays the amount directly to the complainant and produces proof of payment of such amount and the complainant appears before the court below and acknowledges receipt of the same, then, the court below is directed to treat the same substantive compliance of the compensation out of fine as directed by this court and record the same in the respective registers and permit the revision petitioner to serve the substantive sentence of imprisonment till rising of court 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].
With the above modification of the sentence alone, the revision petition is allowed in part and disposed of accordingly.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge