The accused in S.T.Case.No.1902/2009 on the file of the Judicial First Class Magistrate Court-III, Palakkad 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'). The case of the complainant in the complaint was that, the revision petitioner had borrowed an amount of Rs.2,92,500/- for the purpose of enabling the revision petitioner to get a loan from Palakkad Service Co-operative Bank, by depositing this amount in the scheme known as 'Swayam Vardini', and from that a loan was taken and the amount was paid to the revision petitioner, on the understanding that he will discharge the liability on or before 15.03.2007, but he had committed default in payment of the amount and an amount of Rs.5,60,000/- was due for discharge the entire liability of the bank loan, 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.P8 Postal Acknowledgment Card. He had not sent any reply. 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. In order to prove the case of the complainant, the complainant herself was examined as PW1 and PW2 and PW3 were also examined, and the Bank Manager was examined as PW4 and Exts.P1 to P9 were marked on her side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313(1)(b) 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 issued any cheque and there was no such transaction as claimed by the revision petitioner, and the amount was not due. He had not adduced any evidence in defence. 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 three months and also pay the fine amount of Rs.5,60,000, in default to undergo simple imprisonment for three months more. It is further ordered that if the fine amount is realised to same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Aggrieved by the same, he filed Criminal Appeal No.483/2012 before the Sessions Court, Palakkad, and it was made over to Additional Sessions Court Palakkad for disposal. The learned Additional Sessions Judge allowed the appeal in part, confirming the order of conviction but, modified the sentence by sentencing the revision petitioner to undergo imprisonment till rising of the Court, and also to pay a fine of Rs.5,61,000/-, in default to undergo simple imprisonment for three months. It is further ordered that, if the fine amount is realised, an amount of Rs.5,60,000/- 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 by the revision petitioner accused before the Court below.
4. Considering the scope of enquiry and also the nature of contentions raised, and the evidence adduced, this court felt that the revision can be disposed of on merit, after hearing both sides.
5. Counsel for the revision petitioner argued that, the case of the complainant was that, Ext.P5 Promissory Note was executed, and in discharged of that liability the cheque was issued. But the evidence of PW3, the husband of the complainant will go to show that, it was written in his hand writing, and the court below also found that, it cannot be treated as a Promissory Note, and under such circumstances the court below was not justified in coming to the conclusion that, the presumption is available in favour of the complainant. Further the case was settled in police station and the cheque was issued from there. But no attempt was made on the part of the complainant prove the same. At the same time he filed the petition to summon such documents, but that was dismissed by the court. So all those things will go to show that, though he tried to rebut the presumptions, the opportunity was denied, and courts below were not justified in convicting the revision petitioner for the offence alleged.
6. On the other hand, the counsel for the second respondent submitted that, in the 313 examination, he had no explanation as to how his cheque had come to the hands of the complainant. Further the evidence of PW4 will go to show that, she had deposited the amount, and from that a loan was taken and the amount was paid to the revision petitioner, and the certificate issued by the bank also will go to show that the loan has not been discharged and it is still due. The court below was perfectly justified in coming to the conclusion that Ext.P5 is not a Promissory Note, but it can be treated as an undertaking given by the revision petitioner to pay the amount, and the earlier cheque given when dishonoured, he had issued the present cheque and the revision petitioner had no explanation as to how these two cheques have come to the hands of the complainant. So all these things will falsify the case of the revision petitioner. So courts below were perfectly justified in convicting the revision petitioner for the offence alleged.
7. The case of the complainant in the complaint was that, during 2011, in order to help the revision petitioner, she had deposited 2,92,500/- in Palakkad Service Co-operative Bank in the scheme 'Swayam Vardhini', and she had taken a loan from that account, and paid the amount to the revision petitioner to meet his purpose. He had undertaken to pay the amount on or before 15.03.2007, but, the amount was not paid. When demanded, he came to their house and executed Ext.P5 document and also gave a cheque which was dishonoured evidenced by Ext.P6, and Ext.P7 notice was issued, which was acknowledged by the revision petitioner evidenced by Ext.P8, and it is thereafter that Ext.P1 cheque was given for the amount of Rs.5,60,000/- calculating interest up to that date, which when presented was also dishonoured. The case of the revision petitioner was of total denial. In order to prove the case of the complainant, complainant herself has examined as PW1 and she deposed in support of her case in the complaint. PW2, another witness was examined to prove the issuance of the cheque by the revision petitioner. PW3 is the husband of the complainant, who had prepared Ext.P5 alleged Promissory Note as instructed by his wife PW1. It is true that in Ext.P5 there were blanks, and it was only filled up later, and in all the stamps the signature of the revision petitioner was not there. But the revision petitioner had no case the signature in Ext.P5 is not his signature. Further the court below had analyzed the evidence of Ext.PW3 and came to the conclusion that the possibility of PW3 preparing a draft in the form of a Promissory Note in the manner known to him and handed over to his wife which could have been filled later, when it was executed by the revision petitioner. Further the evidence of PW4 coupled with Ext.P9 certificate will go to show that PW1 had deposited 2,92,500/- in the scheme 'Swayam Vardhini', and a loan was taken from that, and the loan was not discharged also. The revision petitioner had no case that Ext.P1 cheque or the cheque mentioned in Ext.P6 Dishonour Memo were not issued by him from the account maintained by him in the bank. He had no explanation as to how those two cheques have come to the hands of the revision petitioner. The court below also come to the conclusion that, though Ext.P5 cannot be treated as a Promissory Note, it can be taken as an undertaking given by the revision petitioner of his earlier liability, and to pay the amount.
8. It is true that, in the evidence of PW1 it was mentioned that, when Ext.P6 Dishonour Memo was received, and in spite of issuing Ext.P7 notice, the revision petitioner did not pay the amount. A complaint was filed before the Police Station, and it was from the Police Station, that the case was settled and Ext.P1 cheque was issued. It is true that, she has not adduced any evidence to prove this fact. The case of the revision petitioner was that, no such incident happened, and he filed an application for that purpose for summoning the alleged complaint and settlement from the Police Station, and it was not produced. But according to the counsel for the revision petitioner, that petition was not allowed. But counsel for the respondent submitted that, since he had not complied with the direction the documents were not summoned.
It is seen from the records that, petitioner filed Crl.M.P.3619/2010 to reopen the evidence, and summons certain documents from Palakkad Town Police Station, but that petition was dismissed by the learned Magistrate, which was challenged by the revision petitioner by filing Crl.R.P.54/2010 before the Sessions Court, Palakkad and the learned Sessions Judge with much reluctance allowed the revision to give an opportunity to the revision petitioner to summon the document on condition of payment of cost of Rs.5,000/- to the complainant, and take steps to summon the documents. But the revision petitioner had not paid the cost and taken steps to summon the documents, and that was the reason why the documents could not be produced before the court. It is also seen from the proceedings stated that, he had submitted that the revision before this court against the order of the Sessions Court, but he had not produced any documents before the court below showing that fact though adjournment was obtained on that ground on several occasions. So there is no merit in the submissions made by the counsel for the revision petitioner that the opportunity to summon documents from the Police Station has been denied to him. In fact opportunity was given to him, but he had not utilised that opportunity.
9. It is also seen from the records that, after the case was posted for hearing, again he filed Crl.M.P.3522/2012 and Crl.M.P.3523/2012 before the trail court for reopening the evidence and senting the disputed cheque for expert opinion. But the learned Magistrate by a common order dated 18.10.2012 dismissed those applications stating that, it is only an attempt on the part of revision petitioner to prolong the matter. So under the circumstances, it cannot be said that, courts below have not given the legitimate opportunity for the revision petitioner to prove his case. He had only attempted to prolong the matter, and when PW1 and PW2 were examined, no question was put to them that the signature in Ext.P1 was not that of the revision petitioner. So under the circumstances, the learned Magistrate would perfectly justified in dismissing the application for sending Ext.P1 cheque for expert opinion as well.
10. As rightly observed by the Sessions Judge in the order in Crl.R.P.54/2010, if the revision petitioner had a case that the cheque was obtained by coercion from the Police Station, then he is impliedly admitting the execution of the cheque. Then the vitiating circumstances have to be proved by him by adducing independent evidence. He had no such case when PW1 and 2 were examined. So under the circumstances, even though the court below had come to the conclusion that Ext.P5 is not a Promissory Note, but on the over all circumstances and evidence adduced the courts below were perfectly justified in coming to the conclusion that, the accused had utilised the Fixed Deposit amount for the purpose of taking loan amount in the year 2001, undertaking to repay the same before 2007, and when he did not pay the amount, earlier he gave a cheque which when dishonoured for the same reason and when notice was issued and proceedings are to be initiated he had again settled the issues by giving Ext.P1 cheque, by calculating the interest payable up to that date, and fixing the amount as 5,60,000/-, which when presented was dishonoured and in spite of notice issued, he had not paid the amount. Further the dictum laid down in the decision reported in Shaji v. Ignatious and Another(2009(1) KHC 740), relied on by the counsel for the revision petitioner is not applicable to the facts of this case. Because the loan transaction was even prior to the execution of Ext.P5 cheque. Even if the Ext.P5 Promissory Note was not proved, if the revision petitioner is able to prove the original transactions by adducing cogent evidence, then that will be sufficient to come to the conclusion for the courts that, Ext.P1 cheque was issued in discharge of that liability. So under circumstances, the courts below were perfectly justified in coming to the conclusion that, the revision petitioner had borrowed the amount, and issued Ext.P1 cheque in discharge of that liability, and thereby he had committed the offence punishable under 138 of the Act, and concurrent findings of the court below on this aspect do not call for any interference.
11. As regards the sentence is concerned, the trail court had sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay fine of Rs.5,60,000/-, in default to undergo simple imprisonment for 3 months. It is further ordered that, if the fine amount is realised, the same be paid to the complainant as compensation under Section 357(i)(b) Code of Criminal Procedure. But the appellate court had modified the sentence by reducing the substantive sentence to imprisonment till rising of the court, and enhancing the fine of Rs.5,61,000/-, with default sentence of three months imprisonment, and directing the cheque amount of Rs.5,60,000/- be payable to the complainant as compensation under Section 357(i)(b) of Code of Criminal Procedure. Maximum leniency has been shown by the appellate court in imposing the sentence as well which cannot be set to be excessive. Which required interference at the hands of this court.
12. While this court is was about to dispose of the case, the counsel for the revision petitioner sought six months time for payment of the amount. This was opposed by the counsel for the respondent. The counsel for the respondent also submitted, that the complainant is aged 72 years, and the loan was taken in the year 2001, and the case was in the year 2009. Considering these aspects and also considering the conduct of the revision petitioner, though this court was not fully agreeable with the prayer for granting time, but showing some leniency, granting four months time for the payment of the amount will be sufficient, and that will make the justice. So the revision petitioner is granted time till 12.04.2015 to pay the amount. Till then the execution of the 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 the complianant appears before the court below and acknowledges the receipt of the same then court below is directed to record the same in the respective register, permitting the revision petitioner to pay the balance fine of Rs.1000/- and undergo the substantive sentence of imprisonment till rising of the court, as provided in the decision reported in Beena vs. Balakrishnan Nair and Another [2010 (2) KLT 1017] and Sivankutty vs. John Thomas and Another [2012 (4) KLT 21], With the above directions and observations the revision petition is dismissed. Office is directed to communicate the order to the concerned court immediately.
Sd/-
K.RAMAKRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE VS