Accused in S.T.No.69/1993 on the file of the Chief Judicial Magistrate Court, Manjeri is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the first respondent – complainant 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 is a customer of the complainant conducting tyre business and in discharge of the liability and amount due, he had issued Ext.P2 cheque dated 30.12.1992 for Rs.4,482/- in favour of the complainant which when presented was dishonoured for the reason 'funds insufficient' and that was intimated to the complainant vide Ext.P3 and P5 memos. The complainant issued Ext.P6 notice intimating the dishonour and demanding payment of the amount and the same was received by the revision petitioner evidenced by the postal acknowledgment produced along with Ext.P6 notice. He 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 Managing Partner of the complainant concern 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 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 given the cheque and the cheque was lost and that was misused and the present complaint was filed. No evidence was adduced on his side in defence.
5. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for six months and also to pay a fine of Rs.8,000/- in default to undergo simple imprisonment for thee months more. It is further ordered that if the fine amount is realised, an amount of Rs.4,482/- 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.113/1999 before the Sessions Court, Manjeri and the learned Sessions Judge allowed the appeal in part reducing the substantive sentence to three months and fine to Rs.6,000/- with default sentence of one month and directed Rs.5,000/- be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Aggrieved by the same, the present revision has been filed.
6. It is seen from the records that notice sent to the respondent has been returned unserved. Considering the nature and scope of enquiry and contentions raised, this court felt that the revision can be disposed of after hearing the Counsel for the revision petitioner and the Public Prosecutor and dispensing with further notice to first respondent considering the fact that the revision is of the year 2003.
7. The Counsel for the revision petitioner submitted that the cheque lost has been misused and the present complaint was filed. The learned Public Prosecutor supported the concurrent findings of the court below.
8. The case of the complainant in the complaint was that revision petitioner was a customer and purchased tyre from their shop and an amount of Rs.4,482/- was due on that account and in discharge of that liability, he had issued Ext.P2 cheque. The case of the revision petitioner was that he had not issued any cheque and the cheque lost was somehow obtained by the complainant and the present complaint was filed. In order to prove the case of the complainant, PW1 was examined and he had deposed in support of his case. Though he was cross examined at length, nothing was brought out to discredit his evidence regarding the transaction and execution and issuance of the cheque by the revision petitioner. Further, when the cheque was dishonoured, it was not dishonoured on the ground that signature differs. But, it was dishonoured on the ground funds insufficient. The revision petitioner had not taken any steps to prove that the signature in Ext.P2 was not his. He did not inform the bank when the cheque was lost. Further, he did not send any reply to the notice issued also. He did not adduce any evidence as to how his cheque had reached the hands of the complainant. So, under the circumstances, courts below were perfectly justified in rejecting the contentions of the revision petitioner and believing and relying on the evidence of PW1 and the presumptions available under Section 139 and 118 of the Act rightly convicted the revision petitioner for the offence under Section 138 of the Act and the concurrent finding of the courts below on facts do not call for any interference.
9. As regards the sentence is concerned, the court below sentenced him to undergo simple imprisonment for six months and also to pay a fine of Rs.8,000/- in default to undergo simple imprisonment for three months more. It is further ordered that, if the fine amount is realised, an amount of Rs.4,482/- be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. In the appeal, the substantive sentence was reduced to three months simple imprisonment and fine is reduced to Rs.6,000/- and default sentence to one month and further directed to pay Rs.5,000/- out of fine as compensation to the complainant.
10. It may be mentioned here that during 1993, the magistrate court has got only power to impose fine of Rs.5,000/-. But, the Hon'ble Apex court has held that the court is having power to award compensation more than the fine amount. (See Suganthi Vs. Jagadeeshan [2002 (1) KLT 581]). So, the fine of Rs.6,000/- fixed by the appellate court appears to be beyond the power of the court. However, considering the circumstances, this court feels that the substantive sentence can be reduced to imprisonment till rising of court and compensation can be fixed at Rs.6,000/- and that can be paid to the complainant. So, the sentence is modified as follows:
The revision petitioner is sentenced to undergo imprisonment till rising of court and also to pay a compensation of Rs.6,000/- in default to undergo simple imprisonment for one month. The amount if any deposited by the revision petitioner is directed to be adjusted towards this amount and he need only the balance amount for which, two months time is granted. Till then, the execution of sentence is directed to be kept in abeyance. If the compensation amount is realised, the court below is directed to pay the amount to the complainant in accordance with law.
With the above modification of sentence alone, the revision petition is allowed in part and disposed of.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge