Accused in S.T.No.541/2005 on the file of the Judicial First Class Magistrate Court-VII, Thiruvananthapuram, is the revision petitioner herein. The case was taken on file on the basis of a private complaint, filed by the original complainant against the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called ‘the Act’).
2. The case of the complainant in the complaint was that, the revision petitioner borrowed a sum of ₹1,10,000/- and in discharge of that liability, he had issued Ext.P1 cheque dated 03.03.2005 in favour of the complainant, which when presented was dishonoured for the reason ‘funds insufficient’ vide Ext.P2 dishonour memo, and the complainant issued Ext.P3 notice dated 23.04.2005 vide Ext.P4 postal acknowledgment and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment. He sent a reply with false allegations that he had not paid the amount. So he 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 of offence were read over and explained to him and he pleaded not guilty. During the pendency of the proceedings, the original complainant died and his brother was substituted as complainant to proceed with the complaint. The substituted complainant namely, the brother of the original complainant was examined as PW1 and Exts.P1 to P6 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the 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 no transaction with the complainant and he had borrowed some amount from DW1 and issued a cheque, which was mis-used and the present complaint was filed by the complainant. But no defence evidence was adduced on his side to prove this fact. DW1 was examined on the side of the revision petitioner. After considering the evidence on record, the court below found that, the case of the revision petitioner is not believable and believing the evidence of PW1 and convicted the revision petitioner for the offence under Section 138 of the Act and sentenced him to undergo simple imprisonment for one month and also to pay a fine of ₹1,10,000/-, in default to undergo simple imprisonment for ten days more. It is further ordered that, if the fine amount is realised, the same be paid to PW1 as compensation under Section 357(1)(b) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.582/2009 before the Sessions Court, Thiruvananthapuram, which was made over to 4th Additional Sessions Court, Thiruvananthapuram, for disposal and the learned Additional Sessions Judge by the impugned judgment dismissed the appeal. Dissatisfied with the same, the present revision has been field by the revision petitioner/ accused before the court below.
4. Considering the scope of enquiry and the nature of 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 learned Public Prosecutor appearing for the 3rd respondent, dispensing with notice to the 2nd respondent.
5. The counsel for the revision petitioner submitted that, the revision petitioner had denied the execution of cheque and the transaction and in such cases, the burden is heavy on the complainant to prove the transaction which the complainant had not established. Further he had sent the reply promptly and that shows that, his case is genuine and court below ought to have found that he had rebutted the presumptions and the conviction of the revision petitioner for the offence alleged is unsustainable in law. The case of the accused was that, there was no transaction between the complainant and the revision petitioner and in fact he had borrowed some amount from DW1, one M.A. Fransis and issued a blank signed cheque, which was mis-used and he had discharged the amount and that has been proved by the revision petitioner by preponderance of probabilities.
6. On the other hand, the learned Public Prosecutor supported the concurrent findings of the courts below.
7. The case of the complainant in the complaint was that, the revision petitioner borrowed a sum of ₹1,10,000/- and in discharge of that liability he had issued Ext.P1 cheque. The original complainant died and his brother was substituted as complainant and examined as PW1. It is true that, once the execution of the cheque is denied by the accused, the burden is on the complainant to prove the execution of the cheque. He need only to prove it to the satisfaction of the court and what is the method by which it can be proved will also depend on facts of each case. In this case, the substituted complainant namely PW1 had gone to the witness box and deposed that, he was present along with the original complainant when the transaction had taken place and he had witnessed the revision petitioner borrowing the amount and brought the cheque duly filled, signed and delivered it to the original complainant. Though he was cross examined at length, nothing was brought out to discredit his evidence on this aspect. Further DW1 was examined on the side of the revision petitioner to prove his case, that has been projected by him in the reply notice, but he had categorically stated that, he did not know either the complainant or the accused and he did not support the case of the revision petitioner. No other evidence was adduced on the side of the revision petitioner. Except sending a reply, he did not take any action against DW1 or the complainant for mis-using the cheque as well.
8. Further he had not proved that, he had got any other transaction with DW1 or prove that his transaction was completed as well. So under the circumstances, the court below was perfectly justified in dis-believing the case of the revision petitioner and believing the evidence of PW1 and coming 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 revision petitioner had no case that, he had paid the amount after receipt of the notice at any point of time. Once it is proved by the complainant that, the revision petitioner had not paid the amount in spite of demand made by them intimating the dishonour, then the offence under Section 138 of the Negotiable Instruments Act is complete and the courts below were perfectly justified in convicting the appellant for the offence under Section 138 of the Act and the concurrent findings of the court below on facts do not call for any interference, as no illegality has been committed by the court below in convicting the revision petitioner for the offence alleged.
9. As regards the sentence is concerned, the court below sentenced him to undergo simple imprisonment for one month and also to pay a fine of ₹1,10,000/-, in default to undergo simple imprisonment for ten days more. This was confirmed by the appellate court. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H. [JT 2010 (4) (S.C.)457], the Hon'ble Supreme Court has held that, the offences under Section 138 of the Act are of generally civil nature, but criminal colour has been given by incorporating the same in the Act so as to make the drawer of the cheque to pay the amount to the payee without fail and its intention is not to send him to jail. Further in the decision resorted in [2013(4) KLT 350 (S.C.)] Somanath Sarkar v. Utpal Basu Mallick, the Hon'ble Supreme Court has held that, there is no provision for payment of compensation directly in cases under Section 138 of the Act, but court has got power to impose double the cheque amount as fine and if the fine amount is quantified, then court can invoke the power under Section 357(1)(b) of the Code to pay the compensation to the complainant. Since it is a case of 2005, applying those principles, this court feels that, increasing the fine to ₹1,30,000/- and reducing the substantive sentence of imprisonment till rising of the court, and default sentence of two months simple imprisonment will be sufficient and that will meet the ends of justice and six months time also can be granted as requested for by the counsel for the revision petitioner for this purpose. So the sentence is modified as follows:
The sentence of one month simple imprisonment and fine of ₹1,10,000/- with default sentence of ten days simple imprisonment and further direction to pay the fine to the complainant as compensation under Section 357(1)(b) of the Code is set aside and the same is modified as follows:
The revision petitioner is sentenced to undergo simple imprisonment, till rising of the court and also to pay a fine of ₹1,30,000/- and in default to undergo simple imprisonment for two months. If the fine mount is realised, the same is directed to be paid to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. Revision petitioner is granted time till 19.05.2015 to pay the amount. Till then, the execution of the sentence is directed to be kept in abeyance.
With the above modification of the sentence alone and with the above direction, the revision is allowed in part. Office is directed to communicate this order to the court below, immediately.
Sd/-
K. Ramakrishnan, Judge // True Copy// P.A. to Judge ss