Accused in S.T.No.475/10 on the file of the Judicial First Class Magistrate Court, No-II, Pathanamthitta is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the 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.3,00,000/- and in discharge of that liability, she had issued Ext.P1 cheque dated 23.12.2009. The cheque when presented was dishonoured for the reason 'funds insufficient' vide Ext.P2 dishonour memo dated 30.12.2009 and that was intimated to the complainant by his banker vide Ext.P3 intimation letter dated 06.01.2010. The complainant issued Ext.P4 notice dated 15.01.2010 on the same date vide Ext.P5 postal receipt intimating the dishonour and demanding payment of the amount and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. The revision petitioner sent Ext.P7 reply notice. She had not paid the amount. So, she 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 her and she pleaded not guilty. In order to prove the case of the complainant, PWs 1 to 3 were examined and Exts.P1 to P9 were marked on the side of the complainant. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of Code of Criminal Procedure and she denied all the incriminating circumstances brought against her in the complainant's evidence. She had further stated that one Mathew had borrowed Rs.1,50,000/- from PW3, as a security for the same, a blank singed cheque was obtained from the revision petitioner and one Jacob Varghese. Though the amount was paid, the cheque was misused and the present complaint was filed. In order to prove her case, DW1 – an office assistant of the concern where the revision petitioner was working was examined.
5. After considering the evidence on record, the court below found that the case of the revision petitioner is not probable or believable and accepting the evidence of the complainant found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for three months and also to pay a compensation of Rs.3,00,000/- to the complainant in default to undergo simple imprisonment for three months under Section 357(3) of Code of Criminal Procedure. The revision petitioner filed Crl.Appeal.No.282/13 before the Sessions Court, Pathanamthitta and the learned Sessions Judge by the impugned judgment, allowed the appeal in part confirming the order of conviction and direction to pay compensation with default sentence, but, reduced the substantive sentence to imprisonment till rising of court from imprisonment for three months imposed 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 first respondent has appeared in the delay application and expressed his desire to appear in the revision also, this court felt that the revision can be admitted and can be disposed of today itself after hearing both sides. So, the revision is admitted and heard and disposed of today itself.
7. The Counsel for the revision petitioner submitted that the evidence of PWs 1 to 3 is not believable and the evidence of DW1 will go to show that there is no possibility for the revision petitioner giving cheque to the complainant as claimed by him and she had rebutted the presumption. Further, she had also promptly replied the notice issued as well. So, she is entitled to get the benefit of non proving the execution of the cheque by the complainant and entitled to acquittal.
8. On the other hand, the Counsel for the first respondent submitted that the courts below have appreciated the evidence and after considering the facts, come to the conclusion that the case of the revision petitioner is not probable and rightly convicted the revision petitioner and there is no question of law or illegality arises to interfere with the concurrent findings of the court below on this aspect on facts.
9. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.3,00,000/- and in discharge of that liability, she had issued Ext.P1 cheque. But, the case of the revision petitioner was one of total denial. Her case was that there was no transaction between the complainant and herself and in fact, one Mathew had borrowed Rs.1,50,000/- from PW3 and as a security for the same, blank signed cheque of herself and one Jacob Varghese were obtained. In order to prove the case of the complainant, PWs 1 to 3 were examined and PWs 1 and 3 had categorically stated that the revision petitioner borrowed the amount and issued Ext.P1 cheque in discharge of that liability in favour of the complainant. PW3 had denied the suggestion that the cheque was obtained from one Mathew for the loan which he had taken from him. Though they were cross examined at length, nothing was brought out to discredit their evidence regarding this aspect. Further, PW2 was examined to prove that the complainant had borrowed some amount from PW2 for the purpose of paying the amount. The evidence of DW1 is not believable because, he was not aware of the date on which the cheque was given and he had stated that the cheque was given to one Shijo and not to PW3. Whether that Shijo is the person mentioned as Jacob Varghese or PW3 by the revision petitioner or not. Further, the person who had borrowed the amount on whose behalf the cheque of the revision petitioner was given as security was the best person to speak about the transaction, but, he was not examined. So, under the circumstances, courts below were perfectly justified in rejecting the contentions of the revision petitioner that the cheque was not issued in discharge of any liability for any amount due from her to the complainant and rightly relying on the evidence of PWs 1 to 3, came to the conclusion that the complainant had proved that the revision petitioner had borrowed the amount and issued Ext.P1 cheque in discharge of that liability. The concurrent finding of the court below on this aspect do not call for any interference. The revision petitioner had no case that the legal formalities were not complied with before filing the complaint. The revision petitioner also had no case that she had paid the amount after receipt of the 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 that finding does not call for any interference.
10. As regards the sentence is concerned, the trial court has sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay the cheque amount of Rs.3,00,000/- as compensation in default to undergo simple imprisonment for three months under Section 357(3) of Code of Criminal Procedure. But, the appellate court had, though confirmed the direction to pay compensation with default sentence under Section 357(3) of Code of Criminal Procedure, reduced the substantive sentence of imprisonment from three months to imprisonment till rising of court. So, maximum leniency has been shown by the appellate court in imposing the sentence as well which also do not call for any interference as it appears to be just and proper.
11. While this court was about to dispose of the revision, the Counsel for the revision petitioner sought eight months time for payment of the amount which was opposed by the Counsel for the first respondent. Considering the fact that the case is of the year 2010 and also considering the amount involved, this court feels that, six months time can be granted for payment of the amount. So, the revision petitioner is granted time till 05.05.2015. Till then, the execution of the sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and produces proof of such payment and this is being acknowledged by the complainant before the court below, then, court below is directed to treat the same as substantial compliance of payment of compensation to the complainant as directed by the courts below and confirmed by this court 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.
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