Accused in C.C.No.261/2008 on the file of the Judicial First Class Magistrate Court, No-V, Thiruvananthapruam 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 an amount of Rs.1,50,000/- and in discharge of that liability, he had issued Ext.P1 cheque which when presented was dishonoured for the reason 'funds insufficient' vide Ext.P2 dishonour memo. The complainant issued Ext.P3 notice vide Ext.P4 postal receipt and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment. The revision petitioner had not paid the amount. So, he 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 him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and his wife was examined as PW2 and Exts.P1 to P8 and P6(a) and P7(a) were marked on his side. After closure of the complainant's evidence, the revision petitioner 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 he had not borrowed any amount. He was working as a supervisor in the Kerala Water Authority in which the complainant was also working as a peon and being a Trade Union Leader, when he wanted a transfer to a convenient place, he assured of getting a transfer for which he demanded some amount and as a security for the same, he had issued Ext.P1 cheque as a blank signed cheque and the amount demanded was Rs.25,000/-. Though the transfer could not be materialized, the cheque was not returned and misusing the same, the present complaint was filed. In order to prove his case, DW1 was examined on the side of the revision petitioner.
5. After considering the evidence on record, the court below found that the revision petitioner has failed to prove his case and the complainant had established his case and convicted the revision petitioner for the offence under Section 138 of the Act and sentenced him to undergo simple imprisonment for six months and also to pay a fine of Rs.1,50,000/- in default to undergo simple imprisonment for three months more. It is further ordered that, if the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Aggrieved by the same, he filed Crl.Appeal.No.04/2011 before the Sessions Court, Thiruvananthapruam which was made over to Second Additional Sessions Court, Thiruvananthapruam for disposal and the learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction and sentenced to pay fine and further direction to pay the fine amount as compensation to the complainant, but, reduced the substantive sentence to imprisonment till rising of court and enhanced the default sentence to four months from three months. This is being challenged by the revision petitioner by filing this revision.
6. Considering the scope of enquiry and 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 second respondent and dispensing with notice to the first respondent.
7. The Counsel for the revision petitioner submitted that there is nothing mentioned in the complaint as to when the amount was borrowed and the purpose for which it was borrowed etc., and he had examined DW1 and he had disproved the case of the complainant. Further, the revision petitioner need only rebut the case by preponderance of probabilities and considering their position, there is no possibility of any amount being borrowed as claimed. Further, the documents produced by the complainant are not enough to show that the amounts were withdrawn for the purpose of giving the same to the revision petitioner. So, he had rebutted the presumption and he had relied on the decision reported in Vijay Vs. Laxman and Another [2013 (1) KHC 588] in support of this case.
8. On the other hand, the learned Public Prosecutor supported the concurrent findings of the court below.
9. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.1,50,000/- and in discharge of that liability, he had issued Ext.P1 cheque. The case of the revision petitioner was one of total denial. His case was that there was no money transaction, but, in fact, the cheque was given as a security for the amount Rs.25,000/- demanded by the complainant for getting a transfer in favour of the revision petitioner to a convenient place. It is true that when the transaction is denied by the accused, the burden is on the complainant to prove the same. In this case, in order to prove the case of the complainant, the complainant himself was examined as PW1 and his wife was examined as PW2. Both of them have categorically stated that the amounts withdrawn from the respective accounts evidenced by Ext.P6, P6(a), P7 and P7(a) and P8 were used for the purpose of advancing the amount to the revision petitioner. PW1 had denied the suggestion that he, being a Trade Union Leader, had agreed to obtain a transfer and for that purpose, he demanded Rs.25,000/- and as security for the same, this cheque was given. It is true that the entries in the documents produced will go to show that, it was withdrawn some time back and not immediately prior to the date which the cheque was issued. It may be mentioned here that the cheque was dated 02.05.2008. The evidence of PW1 is that the amount was paid earlier and only when the amount was demanded, later, the cheque was given. So, the date of withdrawal is not much relevant in this case. Further, in order to prove the case of the revision petitioner, DW1 his co-employee was examined, but, he had categorically stated that he had no direct knowledge about the transaction and he had only hearsay knowledge about the same from the revision petitioner. So, on that ground, the courts below were perfectly justified in not relying the evidence of DW1 on this aspect. Except this, he had not adduced any evidence. Further, he did not take any steps to get back the cheque when the alleged purpose of which it was given was not materialized. The revision petitioner cannot be said to be an ordinary person. He was working as a supervisor in Water Authority and according to the Counsel for the revision petitioner, he is in a higher position than the complainant as well. Further, he did not send any reply to the notice issued also. So, under the circumstances, the courts below were perfectly justified in coming to the conclusion that the revision petitioner had failed to prove his case and the evidence of PW1 and 2 is sufficient to come to t he conclusion that the amount was borrowed and the cheque was issued in discharge of that liability by the revision petitioner.
10. It is true that in the decision reported in Vijay Vs.
Laxman and Another [2013 (1) KHC 588], it has been observed that, the non mentioning of the date of borrowal and issuance of the cheque is fatal but, the principle laid down in a case has to be considered depending upon the circumstances of the case. That was a case where evidence was adduced to prove that there was supply of milk transaction between the complainant and the accused and according to the complainant, apart from that transaction, a separate loan transaction was made and the cheque was issued in discharge of that liability. But, according to the accused, the cheque was given as a security for supply of milk and when there was some altercation occurred regarding the supply of milk, misusing the cheque the complaint was filed. Further, it was brought out in that case that the cheque was presented before than it was really indented to be presented also. So, under such circumstances, the Hon'ble Supreme Court has held that even though the cheque was duly obtained from its lawful owner when it was used for un-lawul reason when it was submitted for encashment on a date when it was not meant to be presented and dishonoured, no offence under Section 138 is said to have been committed. Here, that was not the case. Further, the purpose for which the cheque was said to have been given by the revision petitioner was not established by him as well. In the absence of such evidence and on the basis of the evidence available on record by examining PWs 1 and 2, the court below had correctly come to the conclusion that the case of the revision petitioner was not believable and the complainant had established his case that he had borrowed the amount and issued Ext.P1 cheque in discharge of his liability. So, the dictum laid down in the above decision is not applicable to the facts of this case.
11. The revision petitioner had no case that he had paid the amount after receipt of the notice. He did not even take any steps against the complainant even after receipt of the notice for getting back the cheque also. So, considering the position of the revision petitioner, the facts that, he had not sent any reply and not taken any steps to get back the cheque from the complainant are all circumstances which will go against the normal person and that will go against the revision petitioner as well. So, under the circumstances, courts below were perfectly justified in coming to the conclusion that the revision petitioner had borrowed the amount and issued the cheque and in spite of intimation regarding dishonour, the amount was not paid and so, he had committed the offence punishable under Section 138 of the Act and the concurrent findings of the court below on this aspect on facts do not call for any interference.
12. As regards the sentence is concerned, the trial court had sentenced him to undergo simple imprisonment for six months and also to pay the cheque amount as fine with default sentence of three months. It is further ordered that if the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. The appellate court had though confirmed the sentence of fine and direction to pay compensation out of fine, reduced the substantive sentence to imprisonment till rising of court and enhanced the default sentence to four months from three months. Maximum leniency has been shown by the appellate court in awarding the sentence which cannot be said to be excessive in view of the decisions laid down in Damodar S. Prabhu Vs. Sayed Babalal H. [JT 2010 (4) SC 457] and Somnath Sarkar Vs. Utpal Basu Mallick [2013(4) KLT 350 (SC)].
13. When this court was about to dispose of the case, the Counsel for the revision petitioner submitted that the revision petitioner is a pensioner and an aged person, and prayed for ten months time for payment of the amount. Considering the above circumstances, this court feels that the same can be granted. So, the revision petitioner is granted time till 30.09.2015 to pay the amount. Till then, the execution of sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and produces proof of payment of the same and that is being acknowledged by the complainant by appearing before the court below, then, court below is directed to treat the same as substantial compliance of payment of compensation out of fine 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 serve the substantive sentence of imprisonment till rising of court.
With the above direction and observation, the revision petition 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