Accused in C.C.No.639/12 on the file of Judicial First Class Magistrate Court, No-1, Chengannur is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the complainant alleging offences under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').
3. The case of the complainant in the complaint was that, in discharge of his liability, the revision petitioner issued Ext.P1 cheque for Rs.1,16,000/- drawn on Indian Bank, Chengannur dated 30.11.06 and the cheque when presented was dishonoured for the reason 'funds insufficient' vide Ext.P2 memo and that was intimated to the complainant by his banker vide Ext.P3 intimation memo. The complainant issued Ext.P4 notice vide Ext.P6 postal receipt and the same was returned with endorsement 'unclaimed' evidenced by Ext.P6 returned notice. The accused had not paid the amount. So, he had committed the offence punishable under Section 138 of the Negotiable Instruments Act.
4. When the revision petitioner appeared before the court below, particulars of offences were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, complainant himself was examined as PW1 and Exts.P1 to P6 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 the cheque was issued not in discharge in the liability, but as a security for the payment of the amount and so, no offence is committed. In order to prove his case, the accused himself was examined as DW1 and Ext.D1 was marked on his side. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of Negotiable Instruments Act and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay the cheque amount of Rs.1,16,000/- as compensation and in default to undergo simple imprisonment for three months more under Section 357(3) of Code of Criminal Procedure.
5. Dissatisfied with the order of conviction and sentence passed by the Sessions Court, the revision petitioner preferred Crl.Appeal No.325/12 before the Sessions Court, Alappuzha which was made over to Additional Sessions Court, No-I, Mavelikkara. The learned Additional Sessions Judge by the impugned order, confirmed the order of conviction and the direction to pay the compensation, but, reduced the substantive sentence imprisonment to till rising of court. Dissatisfied with the same, the petitioner has come before this court with the above revision.
6. Since first respondent had entered appearance, this court feels that this can be admitted and heard and disposed of today itself.
7. Heard the Counsel for the revision petitioner, first respondent and the learned Public Prosecutor appearing for the second respondent.
8. The Counsel for the revision petitioner submitted that the notice was not served on him and it was not sent in the correct address and so, there is no service of notice as contemplated under Section 138 of the Act. Further, the Ext.D1 and evidence of DW1 will go to show that the cheque was not issued in discharge of any liability, but, as a security for the payment of the balance amount of Rs.1,16,000/- So, the courts below were not justified in convicting the appellant for the offence under Section 138 of the Act.
9. On the other hand, the Counsel appearing for the first respondent submitted that there is an admission of the amount due and there is no case that it was a blank singed cheque as well. Even assuming that it was issued as a security, if it was not performed as agreed, then, it will have the character of cheque issued in discharge of a liability. Further, DW1 had admitted in his evidence that he had stayed in that house earlier and it cannot be said that it was not properly served on him. He had not produced any documents to show his change of address as well. So, under the circumstances, courts below were perfectly justified in convicting the appellant for the offence alleged and concurrent findings of the court below on facts need not be interfered with.
10. Heard the Public Prosecutor as well.
11. The case of the complainant in the complaint was that the accused owed an amount of Rs.2,00,000/- in the business transaction and he had paid Rs.84,000/- and for the balance amount, he had issued Ext.P1 cheque. The cheque was dishonoured for the reason 'funds insufficient' and in spite of notice of issued, he had deliberately returned the notice and so he committed the offence punishable under Section 138 of the Act. The case of the revision petitioner was that it was not intended as a cheque for discharge of liability, but, as a security for performance of payment of the amount alone and there is no proper service of notice.
12. It is an admitted fact that Ext.P1 cheque was issued by the revision petitioner which is even evident from Ext.D1 document produced by him and marked through him when he was examined as DW1. Even assuming that the case of the revision petitioner is accepted that at the time when the cheque was issued as a security for payment of the amount, if it was not paid within a reasonable time, it will change the character of a security or guarantee and will assume the character of a cheque issued in discharge of a legally enforceable debt. The revision petitioner had no case that at any point of time, he had paid the amount. So, under the circumstances, the courts below were perfectly justified in coming to the conclusion that Ext.P1 cheque was issued in discharge of a legally enforceable debt for the amount due from him as there is no dispute regarding the amount due and the issuance of cheque for the said amount.
13. As regards the service of notice is concerned, PW1 had categorically stated that he had issued the notice in the address in which normally it will be served. Though DW1 had a case that he was not residing in that address, he had not produced any document to show that he has changed his address and he will not receive notice in that address. Further, the summons and other notices issued from court were served on that address only. Once it is proved by the complainant that he had issued the notice in the correct address in which it will be normally served on him and if it is returned with endorsement 'unclaimed', then, it will be deemed to have been served on him in view of the dictum laid down in the decision reported in Alavi Haji C.C. Vs. Palapetty Muhammed and Others [ILR 2007 (3) Kerala 203 SC] by the Supreme Court. So, in the absence of any evidence adduced on the side of the accused regarding the change of address in which he was residing at the time when the notice was issued, the courts below were perfectly justified in coming to the conclusion that there is a deemed service of notice on the revision petitioner and that is sufficient service of notice as required under Section 138 of the Negotiable Instruments Act. So, under the circumstances, courts below were perfectly justified in coming to the conclusion that the cheque was issued in discharge of a legally enforceable debt and it was dishonoured for the reason 'funds insufficient' and in spite of notice issued, he had not paid the amount and thereby, he had committed the offence punishable under Section 138 of the Act and concurrent findings of the court below on this aspect on facts do not call for any interference at the hands of this court.
14. As regards the sentence is concerned, the learned magistrate has sentenced him to undergo simple imprisonment for three months and also to pay the cheque amount of Rs. 1,16,000/- as compensation in default to undergo simple imprisonment for three months more under Section 357(3) of Code of Criminal Procedure. But, the appellate court though confirmed the compensation awarded and the default sentence, reduced the substantive sentence imprisonment till rising of court. So, maximum leniency has been shown in awarding sentence as well by the appellate court. I don't find any reason to interfere with the sentence imposed as well as it appears to be just and proper.
15. While the court was about to dispose of the case, the counsel for the revision petitioner sought some time for payment of the amount and prayed for six months time. That was opposed by the Counsel for the first respondent. Considering the amount involved, this court feels that three months time can be granted to the revision petitioner to deposit the amount or pay the amount directly to the petitioner and produce proof of such payment before the court below. The amount if any already paid or deposited in compliance with the directions of this court for suspending the sentence, can be given credit to this amount and the balance alone need be paid or deposited by the petitioner. So, time is granted till 17.01.2015 to revision petitioner either pay or deposit the amount. Till then, the execution of sentence is directed to be kept in abeyance. If the amount is paid by the revision petitioner directly to the complainant and produces proof of such payment and if it is acknowledged by the complainant on his appearance before that court, then, that will be treated as sufficient compliance of the payment of compensation to the complainant and the lower court is directed to record this fact of payment in the respective registers and permit the revision petitioner to serve the sentence of imprisonment till rising of court.
With the above direction and observation, the revision petition is dismissed.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge