The accused in S.T.No.4547/2009 on the file of the Judicial First Class Magistrate Court-I, Kottayam is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent against the revision petitioner alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). 2. The case of the complainant in the complaint was that the revision petitioner has availed a loan of Rs.1,10,000/- for purchasing a vehicle with Reg.No.KL-5/N-1091 and committed default in payment of the amount and in discharge of that liability, he had issued Ext.P2 cheque. The cheque when presented was dishonoured for the reason funds insufficient vide Ext.P5 dishonour memo which was intimated to the complainant by their banker vide Ext.P6 intimation letter. The complainant issued Ext.P7 notice to the revision petitioner vide Ext.P8 postal receipt intimating dishonour and demanded payment of the amount and the same was received by the revision petitioner evidenced by Ext.P9 acknowledgment. But he had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint.
3. When the revision petitioner appeared before the court below, particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, Pws 1 and 2 were examined and Exts.P1 to P10 were marked on their side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that the blank signed cheque obtained as security at the time of availing loan was misused and the present complaint was filed. No evidence was adduced on his side to prove his case. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay Rs.1,20,000/- as compensation to the complainant under Section 357 (3) of the Code, in default to undergo simple imprisonment for sixty days. Aggrieved by the same, the revision petitioner filed Crl.A.No.287/2012 before the Sessions Court, Kottayam which was made over to the Additional Sessions Court-V, Kottayam for disposal and the learned Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed 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 the 1st respondent has appeared, this Court felt that revision can be admitted, heard and disposed of on merit today itself after hearing both sides. So the revision is admitted, heard and disposed of today itself.
5. The counsel for the revision petitioner submitted that the evidence of Pws 1 and 2 will go to show that the case of the revision petitioner that a blank signed cheque given was misused and the present complaint was filed is probable and he had rebutted the presumption and the courts below were justified in convicting the revision petitioner for the offence alleged.
6. The counsel for the first respondent submitted that no evidence adduced on the side of the revision petitioner to rebut the presumption. So the courts below were perfectly justified in convicting the revision petitioner for the offence alleged.
7. The learned Public Prosecutor supported the submission of the counsel for the first respondent.
8. The case of the complainant in the complaint was that the revision petitioner availed a loan of Rs.1,10,000/- for the purpose of purchasing a vehicle and he committed default and in discharge of that liability, he had issued Ext.P3 cheque. The case of the revision petitioner was that blank signed cheque obtained at the time of availing loan was misused and the present complaint was filed.
9. In order to prove the case of the complainant, the power of attorney holder of PW1 authorized by Ext.P1 power of attorney was examined and then Manager who was in charge of the branch at the time of transaction was examined as PW2 and they deposed in support of their case in the complaint. Further Exts.P3, P4 and Ext.P10 will go to show that the revision petitioner had availed a loan and executed a hypothecation agreement and the amount mentioned in the cheque was due. No evidence was adduced on the side of the revision petitioner to prove that the blank signed cheque given was misused or he had paid the amount and no amount was due from him. So in the absence of any evidence adduced by the revision petitioner to rebut the presumption under Section 138 of the Act the courts below were perfectly justified in relying on the evidence of Pws 1 and 2 to conclude that the cheque was issued in discharge of a legally enforceable debt for the amount due from him to the complainant company. This was also strengthen by non sending of reply by the revision petitioner to the notice issued by the complainant as well. He had no case that he had paid the amount after receipt of the notice. So the courts below were perfectly justified in convicting the revision petitioner under Section 138 of the Act and the concurrent findings of the courts on this aspect do not call for interference.
10. As regards the sentence is concerned, though the trial court had sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay compensation of Rs.1,20,000/- to the complainant, in default to undergo simple imprisonment for sixty days under Section 357 (3) of the Code, the substantive sentence was reduced to imprisonment till the rising of court by the appellate court while confirming the direction to pay compensation with default sentence. So maximum leniency has been shown by the appellate court while imposing sentence which cannot be said to be excessive and there is no merit in the submission that sentence imposed is harsh and does not liable to be interfered.
11. While this Court was about to dispose of the case, the counsel for the revision petitioner prayed for 9 months time to pay the amount. Considering the fact that the case is of the year 2009, this Court felt that the time asked for is excessive. However, considering the circumstance, this Court feels that 5 months time can be granted to the petitioner to pay the amount. So the revision petitioner is granted time till 26.4.2015 to pay the amount. Till then execution of the sentence as directed to be kept in abeyance.
With the above directions and observation, the revision petition is dismissed.
Communicate this order to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge