Accused in C.C.No.245/11 of Judicial First Class Magistrate Court, No-I, Thiruvananthapuram 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 accused borrowed a sum of Rs.1,00,000/- from the complainant and in discharge of that liability, he had issued Ext.P1 cheque dated 18.08.09 drawn on Ananthapuram Co- operative Society Ltd No-184, in favour of the complainant. The cheque when presented was dishonoured for the reason 'funds insufficient' vide Ext.P2 dishonour memo dated 25.08.2009 and the complainant issued Ext.P3 notice dated 17.09.2009 on 18.09.2009 vide Ext.P4 postal receipt and the same was received by the accused evidenced by Ext.P5 postal acknowledgment. The accused had not paid the amount. So, he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint.
4. When the accused 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 Ext.P1 to P5 were marked on his side. After closure of the complainant's evidence, the accused 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 borrowed Rs.60,000/- from him and he had repaid Rs.25,000/- and at the time when he borrowed the amount, two blank signed cheques were given, one of which was misused and the present complaint was filed. No evidence adduced on the side of the accused in defence.
5. After considering the evidence on record, learned magistrate found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to pay a fine of Rs.1,27,000/- in default to undergo simple imprisonment for six months. It is further ordered, if the fine amount is realized, the same was directed to 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.302/12 before the Sessions Court, Thiruvananthapuram which was made over to Fourth Additional Sessions Court, Thiruvananthapuram for disposal. Since the appellant was not represented by Counsel, after hearing the Counsel for the complainant, the learned Additional Sessions Judge dismissed the appeal on merit which is being challenged by the petitioner before this court.
6. Considering the nature of dispute and the scope of enquiry, 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 first respondent and dispensing with notice to the second respondent.
7. The Counsel for the revision petitioner submitted that the appellate court was not justified in disposing the appeal in the absence of the Counsel for the appellant without giving an opportunity of hearing to the appellant either by allowing the appellant to engage a lawyer or appointing an amicus curiae. He had relied on the decision reported in Shridhar Namdeo Lawand Vs. State of Maharashtra [2013 SAR (Criminal) 1030].
8. The learned Public Prosecutor supported the concurrent findings of the court below.
9. As regards the first question is concerned, even in the decision relied on by the Counsel for the revision petitioner that was a case where the appeal was dismissed for default and the Supreme Court has held that in a case where incarceration has been made part of the sentence and an appeal has been preferred by the accused, then, an opportunity must be given to the accused to canvass his appeal on merit and dismissal of the appeal for default without going into the merit was deprecated and it was remitted to the court below for hearing. Further, in the decisions reported by the Supreme Court, in such cases, the supreme court has only held that the criminal appeal should not be dismissed for default and merely because the Counsel for the appellant does not appear, it should not be adjourned as well. But, if the court feels that, that can be disposed of on merit, the court has to dispose of the case on merit and it should not be dismissed for default. So, under the circumstances, the court below was perfectly justified in disposing of the appeal on merit and there is no illegality committed by the appellate court in disposing the appeal on merit even in the absence of the complainant.
10. As regard the merit is also considered, the case of the complainant was that, accused borrowed a sum of Rs.1,00,000/- and in discharge of that liability, he had issued Ext.P1 cheque. The case of the revision petitioner was that he had borrowed only Rs.60,000/- and repaid Rs.25,000/- and at the time borrowal, he had given two blank signed cheques, one of which was misused and 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 this case in the complaint. Though he was cross examined at length, nothing was brought out to discredit his evidence regarding the factum of the revision petitioner borrowing the amount and issuing the cheque. The revision petitioner did not adduce any evidence to prove his case as well. Further, no reply was sent to the notice issued by the complainant when the cheque was dishonoured. So, under the circumstances, courts below were perfectly justified in coming to the conclusion that the accused had borrowed the amount and issued the cheque in discharge of his liability and rightly convicted the revision petitioner relying on the unchallenged and un controverted evidence of PW1 and relying on the presumptions available under Section 139 and 118 of the Act and the concurrent findings of the court below on that aspect does not call for any interference.
11. As regards the quantum of sentence is concerned, both the courts below have imposed only fine as sentence. Further, the court is entitled to award double the cheque amount as fine. So, the amount of Rs.1,27,000/- fixed as fine also cannot be said to be excessive which requires the interference of this court. So, the revision lacks bona fides and the same is liable to be dismissed. While this court was about to dispose of the revision, Counsel for the petitioner prayed six months time for payment of the amount. Considering the amount involved, this court feels that five months time can be granted to pay the amount. So, revision petitioner is granted time till 21.03.2015 to pay the amount or deposit the amount before the court below. Till then, the execution of sentence is directed to be kept in abeyance. If the amount is paid directly to the complainant and produces proof of such payment before the court below and acknowledged by the complainant and if the court below is satisfied, then, that can be recorded as substantial compliance of payment of compensation out of the fine amount to the complainant and this can be recorded as provided 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 direction and observation, the revision is dismissed.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge