Accused in S.T.No.907/2011 on the file of the Judicial First Class Magistrate Court, Nadapuram 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 he advanced Rs.10,00,000/- to the accused who agreed to pay Rs.10,000/- as profit during the year 2009 and that was not fulfilled. Thereafter Ext.P1 agreement was executed by the accused undertaking to pay the amount and in the discharge of the liability, he had issued Ext.P2 cheque. The cheque when presented was dishnonoured for the reason funds insufficient vide Ext.P3 dishonour memo and that was intimated to the complainant by Ext.P4 intimation letter. The complainant issued Ext.P5 notice dated 22.08.2011 intimating the dishonour and demanding payment of the amount, on the same day vide Ext.P6 postal receipt and the same was received by the accused evidenced by Ext.P7 postal acknowledgement. Ext.P8 is a reply notice issued. The accused had not paid the amount. So he had committed the offence punishable under Section 138 of the Act. Hence the complaint.
3. When the revision petitioner appeared before the court below, the particulars of the offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, Pws 1 and 2 were examined and Exts.P1 to P8 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 he denied all the incriminating circumstances brought against him in the complainant’s evidence. He had further stated that he had no transaction with the complainant and Ext.P2 cheque was not issued by him to the complainant. The cheque somehow obtained by PW2 has been misused and the present complaint has been filed through PW1. No evidence was adduced on his side in defence. 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 3 months and also to pay a compensation of `.10,00,000/- to the complainant in default to undergo simple imprisonment for 6 months under section 357 (3) of the Code.
4. Aggrieved by the same, the revision petitioner filed Criminal Appeal No.651/2012 before the Sessions Court, Kozhikode, which was made over to the Additional Sessions Judge, Fast track, (Adhoc-II) Kozhikode for disposal and the learned Additional Sessions Judge by the impugned judgment dated 21.03.2013 confirming the order of conviction and sentence, dismissed the appeal against which the present revision petition has been filed by the revision petitioner.
5. It is seen from the proceedings paper that when it came up for hearing on admission, it was submitted before the Court that the legality of the sentence alone is challenged and on that basis the revision petition has been admitted to that extent and notice was issued to the first respondent. First respondent appeared through counsel.
6. Heard the counsel for the revision petitioner and also for the first respondent and the public prosecutor.
7. On going through the records as well as the discussions made by the court below, on the question of facts regarding execution of the cheque and the transaction, it is seen that PWs 1 and 2 have categorically stated about the transaction, and the execution of Ext.P1 agreement by the accused and issuance of Ext.P2 cheque in discharge of his liability when the amount was demanded. Though the accused had a case that there was no transaction in Ext.P8 the accused had admitted the transaction between the accused and the complainant and he had issued Ext.P2 cheque to the complainant. He had no specific case as to how his cheque had come to the hands of the complainant. Further, in order to prove the case of the complainant PWs 1 and 2 were examined and they have categorically stated about the transaction and issuance of the cheque by the accused in discharge of the liability which he is liable to pay as per Ext.P1 acknowledgment of receipt given by him by which he had admitted the receipt of the amount and agreed to pay the profit which he had not paid later which is evident from evidence of PWs 1 and 2. Further, he had not taken any steps against either PW1 or PW2 for alleged misusing of the cheque as well. No evidence has been adduced on his side to prove the circumstances and facts of the case the cheque has been reached on the hands of the complainant. So, under the circumstances, and in the absence of any evidence adduced on the side of the accused the courts below have on the basis of the evidence adduced on the side of the complainant concurrently found that Ext.P2 cheque was issued by the accused in discharge of the return of the amount which he acknowledged as per Ext.P1 and he had no case that after intimation of the dishonour, he had paid the amount as well. So, under the circumstances, the courts below were perfectly justified in coming to the conclusion that Ext.P2 cheque was issued in discharge of legally enforceable debt and the accused had not paid the amount when the dishonour of cheque was intimated and thereby he had committed the offence punishable under section 138 of the Act and the concurrent findings of the court below on this aspect or fact do not call for any interference as no illegality has been committed by the courts below on this aspect.
8. As regards the sentence is concerned, the trial court has sentenced him to undergo simple imprisonment for three months and also to pay Rs.10,00,000/- as compensation in default to undergo simple imprisonment for six months under section 357(3) of the Code and this was confirmed by the appellate court as well.
9. Considering the fact that the proceedings under section 138 of the Negotiable Instruments Act has been incorporated as a penal section in order to make the drawer of the cheque to pay the amount and recover the amount by giving an opportunity to pay the same and not to send behind the bars. As far as possible the effort must be made to recover the amount instead of sending the accused to jail. So considering the circumstances and the legislative intention, this court feels that the substantive sentence of imprisonment of 3 months can be reduced imprisonment till rising of court especially when the court has granted the entire cheque amount as compensation with a default sentence of six months imprisonment. So to that extent alone the sentence imposed by the court below is modified by reducing the substantive sentence of three months simple imprisonment imposed by the court below and confirmed by the appellate court to imprisonment till rising of court. So the sentence is modified as follows:-
The revision petitioner is sentenced to undergo simple imprisonment till rising of court and also to pay the cheque amount of Rs.10,00,000/- as compensation to the complainant in default to undergo simple imprisonment for six months under section 357(3) of the Code. Six months’ time is granted to pay the amount. The revision petitioner is granted time till 20.04.2015 to pay the amount, till then the execution of sentence is directed to be kept in abeyance.
With the above modification of the sentence alone the revision petition is allowed in part. Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.RAMAKRISHNAN, JUDGE R.AV //true copy// PA to Judge