Accused in S.T.No.1764/2007 on the file of the Judicial First Class Magistrate Court, Thiruvalla, is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the complainant first respondent herein against the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called the Act). The case of the complainant in the complaint was that the revision petitioner borrowed a sum of `.4,80,000/- from the complainant and in discharge of that liability, she had issued Ext.P1 cheque which when presented was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo. This was intimated to the complainant by her banker vide Ext.P3 intimation letter. The complainant issued Ext.P4 notice vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgement. She had not paid the amount. So, she 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 offence were read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, the complainant herself was examined as PW1 and her father was examined as PW2 and Exts.P1 to P8 were marked on her side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure (hereinafter called the Code) and she denied all the incriminating circumstances brought against her in the complainant's evidence and she had further stated that there was no transaction between herself and the complainant and that she had lost her cheque which was somehow obtained by the complainant and the present complaint was filed. No evidence was adduced on her side in defence to prove that fact. After considering the evidence on record, the trial court 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 the cheque amount of `.4,80,000/- as compensation to the complainant in default to undergo simple imprisonment for 3 months under section 357 (3) of the Code of criminal procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.150/2011 before the Sessions Court, Pathanamthitt and that was made over to Additional Sessions Court (Adhoc-III) Pathanamthitta for disposal. The learned Additional Sessions Judge by the impugned order allowed the appeal in part confirming the order of conviction and direction to pay compensation with default sentence under section 357 (3) of the Code of Criminal Procedure but reduced the substantive sentence of imprisonment to till rising of court from 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.
4. Since in the delay application, first respondent had appeared and proposed to appear in the revision also, 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 and disposed of today itself.
5. The counsel for the revision petitioner submitted that the courts below have not properly appreciated the evidence and in fact the revision petitioner had rebutted the presumption and sentenced imposed is harsh.
6. The counsel for the first respondent submitted that the concurrent findings of the court below do not call for any interference and no rebuttal evidence was adduced on the side of the revision petitioner.
7. The learned Public Prosecutor also supported the concurrent findings of the courts below on this aspect.
8. The case of the complainant in the complaint was that the revision petitioner borrowed `.4,80,000/- from the complainant and in discharge of that liability, she had issued Ext.P1 cheque. The case of the revision petitioner was one of total denial. She had even denied the execution of the cheque. Revision petitioner's case was that her cheque was lost which was somehow obtained by the complainant and the present complaint was filed. In order to prove the case of the complainant, the complainant herself was examined as PW1 and prove the source her father was examined as PW2. Ext.P7 was produced to show that PW2 obtained a loan from the bank and that was credited in the pass book from which he withdrew `.4,80,000/- and handedover to PW1 for the purpose of helping the revision petitioner who is also their relative. Though they were cross-examined at length, nothing was brought out to discredit their evidence on this aspect. PW1 and 2 categorically stated that the revision petitioner had issued Ext.P1 cheque. Once the issuance of cheque was proved by the complainant, then the burden is on the revision petitioner to rebut the presumption available under section 139 and 118 of the Act which she had not discharged. Further she did not send any reply 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 complainant had proved her case and rightly convicted the revision petitioner for the offence under section 138 of the Act and the concurrent findings of the courts below on facts on this aspect do not call for any interference.
9. 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 `.4,80,000/- as compensation to the complainant in default to undergo simple imprisonment for 3 months under section 357 (3) of the Code of Criminal Procedure. The appellate court had reduced the substantive sentence of imprisonment till rising of court while confirming the order of compensation passed under section 357 (3) of the Code of Criminal Procedure with default sentence. So, maximum leniency has been shown by the appellate court in imposing the sentence as well. So, I don't find any reason to interfere with the sentence imposed as it is just and proper.
10. While this court was about to dispose of the case, the counsel appearing for the revision petitioner sought eight months time to pay the amount. Considering the fact that the case is of the year 2007, and considering the amount involved, this court feels that six months time can be granted to the revision petitioner for payment of the amount. So the revision petitioner is granted time till 30.04.2015 to pay the amount. Till then the execution of the sentence is directed to be kept in abeyance. If the amount is paid directly to the complainant and the revision petitioner produces proof of such payment and the complainant appearing before the court below and acknowledging the receipt of the same, then the court below is directed to treat the same as substantial compliance of payment of compensation to the complainant as ordered by the courts below and confirmed by this court and enter the same in the respective registers as provided in Beena V. Balakrishnan Nair and Another [2010(2) KLT 1017] and Sivankutty V. John Thomas and Another [2012(4) KLT 21].
With the above directions and observations, the revision petition is dismissed. Office is directed to communicate this order immediately.
Sd/-
K.RAMAKRISHNAN, JUDGE R.AV