Second accused in S.T.No.308/10 on the file of Judicial First Class Magistrate Court, No-III, Aluva is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the first respondent as complainant under Section 138 of Negotiable Instruments Act. The case of the complainant was that the first accused Company of which second accused is the partner availed a loan for the purpose of purchase of an Indica Car and in respect of that liability, the accused issued Ext.P7 Cheque dated 22.09.2008 drawn on Bank of Baroda, Angamaly Branch in favour of the complainant and the complainant when presented the cheque was dishonoured for the reason 'account closed' vide Ext.P8 Memo dated 14.10.08. The complainant issued Ext.P9 notice dated 07.11.2008 on the same day vide Ext.P10 postal receipt and P10(a) Postal receipts and they were served on the accused evidenced by Ext.P11 and Ext.P11(a) Postal acknowledgments. The accused had not paid the amount. So, they have committed the offence punishable under Section 138 of the Negotiatiable Instruments Act.
3. On appearance of the accused, the learned magistrate read over the particulars of offence to the accused and they pleaded not guilty. In order to prove the case of the complainant, PW1 - the authorized agent of the complainant company authorized by Ext.P1 to P4, was examined and Ext.P1 to P11, P10(a) and P11(a) were marked on the side of the complainant. After closure of the complainant's evidence, the accused were questioned under Section 313 of Code of Criminal Procedure and they denied all the incriminating circumstances brought against them in the complainant's evidence. They have further stated that the blank signed cheque obtained as security was misused and the present complaint was filed. No defence evidence was adduced on their side. After considering the evidence on record, the learned magistrate found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced the second accused as partner to pay a fine of Rs.4,63,477/- in default to undergo simple imprisonment for three months as first accused is the firm represented by the second accused. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.23/12 before the Sessions Court, Ernakulam and the same was dismissed by the Additional Sessions Judge, No-VIII, Ernakulam as per the impugned judgment dated 25.06.14 which is being challenged by the petitioner before this court by filing this revision petition.
4. Considering the nature of the disputes and the contentions 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 third respondent dispensing with notice to the first and second respondent.
5. The Counsel for the revision petitioner submitted that no acceptable evidence was adduced on the side of the complainant to prove that the amount was due and the accused had discharged their burden by proving that the cheque given as security was misused and no offence under Section 138 of the Act is attracted and these aspects were not properly considered by the courts below.
6. The learned Public Prosecutor submitted that no illegality has been committed so as to warrant interference at the hands of this court.
7. The point that arise for consideration is whether there is any illegality committed by the courts below in passing the impugned judgments.
8. The case of the complainant was that the first accused firm through the second accused availed a loan for the purpose of purchasing an Indica Car and they committed default and in discharge of that liability, they issued Ex.P7 cheque which when presented was dishonoured for the reason 'account closed'. In spite of notice issued, they did not pay the amount. So, they have committed the offence under Section 138 of the Act. In order to prove the case of the complainant, PW1 the authorized agent of the complainant concern was examined. Though he was cross examined at length, nothing was brought out to discredit his evidence. The fact that Ext.P7 cheque was issued by the first accused through the second accused from the account maintained by them is not in dispute. The cheque was dishonoured for the reason 'account closed'. It is settled law that even if the cheque was dishonoured for the reason 'account closed', the complaint under Section 138 of the Act will be attracted. Further, once the execution of the cheque is proved by the complainant, then, the burden is on the accused is to prove that cheque was not issued for discharge of any liability. In this case, no such evidence was adduced on the side of the accused. Further, they did not even send any reply to the notice issued also when the dishonour of cheque was intimated. So, under the circumstances, the courts below were perfectly justified in coming to the conclusion, relying on the evidence of PW1 and also the presumptions available under Section 139 and 118 of the Negotiable Instruments Act, that the accused had committed the offence punishable under Section 138 of the Act and the finding does not call for any interference as no illegality has been committed by the court below to arrive at such a conclusion.
9. As regards the sentence is also concerned, court below had only imposed the cheque amount as fine. Maximum leniency has been shown as well. So, there is nothing to interfere with the sentence imposed as well.
10. While disposing the revision, Counsel for the revision petitioner submitted that the revision petitioner may be given some 6 months time for depositing the amount.
Considering the circumstances and also the amount involved, this court feels that the prayer made by the Counsel for the revision petitioner appears to be reasonable. So, six months time from today is given to the petitioner to remit the fine. Till then, the lower court is directed to keep the execution of the sentence in abeyance. If the petitioner did not remit the amount on or before 13.04.2015, then, court below is at liberty to take coercive steps to realize the fine in accordance with law.
With the above observation, the revision petition is dismissed.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge