Accused in C.C.No.340/2009 on the file of the Judicial First Class Magistrate Court-II, (Forest Offences), Manjeri, is the revision petitioner herein. The case was taken on file on the basis of a private complaint, filed by the complainant against the first respondent, 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 ₹10,37,408/- for his business and an amount of ₹5,00,000/- was paid on 16.06.2008 and Ext.P1 agreement was executed, agreeing to pay the balance amount of ₹5,37,408/- in two instalments of which ₹3,00,000/- and ₹2,37,408/- within a period of two months each and issued two cheques for the said amount and later the amount of ₹3,00,000/- was paid and the cheque was returned and the other amount was not paid. The cheque when presented was dishonoured for the reason ‘funds insufficient’ vide Ext.P3 dishonour memo, and this was intimated to the complainant by Ext.P4 memo. The complainant issued Ext.P5 notice and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. 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. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P7 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 money transaction with the complainant and in fact he had purchased the property of the complainant and for the payment of the consideration, a blank signed cheque and a blank signed stamp paper were obtained and later though the amount was paid and the documents were executed, the cheque and stamp paper were mis-used and Ext.P1 and P2 documents were created and the present complaint was filed. In order to prove his case, one witness was examined as DW1 and Ext.D1 was marked on his side. After considering the evidence on record, the court below rejected the contentions of the revision petitioner and came to the conclusion that, Ext.P2 cheque was issued in discharge of a legally enforceable debt for the amount due from him to the complainant and found the revision petitioner guilty for the offence under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay a fine of ₹2,37,500/-, 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 the Code of Criminal Procedure.
Aggrieved by the same, the revision petitioner filed Crl.Appeal No.121/2012 before the Sessions Court, Manjeri, which was made over to 3rd Additional Sessions Court, Manjeri, for disposal and the learned 3rd Additional Sessions Judge by the impugned judgment dismissed the appeal, confirming the order of conviction and sentence passed by the court below. 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 2nd respondent, dispensing with notice to the 1st respondent.
5. The counsel for the revision petitioner submitted that, the execution of Ext.P1 and P2 documents were not proved by the complainant in accordance with law. Further, even assuming that, Ext.P1 agreement was executed and P2 cheque were given as claimed by the complainant, the cheque was presented after six months of its issue. As per Ext.P1, within two months of that date, the amount will have to be paid and if it is not paid within two months, then it will have deemed to have been issued on that day, namely 16.06.2008 and the cheque was presented only in April 2009, it is beyond six months and it became a stale cheque and no action under Section 138 will be attracted in such case. So the courts below were not justified in convicting the appellant for the offence under Section 138 of the Act.
6. The learned Public Prosecutor supported the concurrent findings of the courts below on this aspect and submitted that, no interference is called for.
7. The case of the complainant in the complaint was that, accused borrowed a sum of ₹10,37,408/- and he had paid ₹5,00,000/- cash on 16.06.2008 and for the balance amount, he had issued two cheques for ₹3,00,000/- and ₹2,37,408/- and the amount of ₹3,00,000/- was paid and the cheque was returned, but the other amount was not paid and so on presentation of the cheque, it was dishonoured and in spite of the notice issued, he had not paid the amount. The case of the revision petitioner was one of total denial. His case was that, there was no money transaction as such, but in fact, he had agreed to purchase the property of the complainant and for that a blank signed cheque and blank signed stamp paper were obtained. Though the documents were executed and the amounts were paid, the blank signed documents given were mis-used and the present documents were created and the complaint was filed. Once the execution of the cheque and the execution of the document have been denied, then the burden is on the complainant to prove the same. In this case, complainant had gone to the witness box and he had deposed in support of his case in the complaint. He had categorically stated that, the accused borrowed ₹10,37,408/- and he had paid ₹5,00,000/- in cash on 16.06.2008 and on that day Ext.P1 agreement was executed, agreeing to pay the balance amount on two occasions with two months time gap and issued two cheques for the respective amounts putting the dates for presentation and he had paid ₹3,00,000/- and obtained the cheque for ₹3,00,000/- back and the balance amount of ₹2,37,408/- covered by Ext.P2 cheque was not paid and so the complaint was filed. He had denied the suggestion that, the blank signed cheque and the blank signed stamp paper obtained at the time, when he entered into an agreement for sale of his property covered by Ext.D1 as security and mis-using the same, the present complaint was filed. He was cross examined at length. He had categorically stated that, the cheque was given in discharge of that liability. The revision petitioner had no case that, the signature seen in Ext.P1 and P2 are not his own. He had examined DW1 to prove the property transaction. But DW1 had in fact denied his signature in Ext.P1 itself and also stated that he was not a witness to Ext.D1 also. Further Ext.P7 vakkalath of the witness was examined by the court below to verify his signature in Ext.P1 and court was convinced that it was signed by DW1. Though he was a witness to Ext.D1 document and having denied that he had not signed in that document, the court below had rightly come to the conclusion that, this witness cannot be believed, as he was examined on the side of the revision petitioner to prove Ext.D1 transaction. So under the circumstances, the evidence of DW1 is not helpful to prove the case of the revision petitioner. Further other contentions raised by the counsel for the revision petitioner, the lower court was that, when an amount is due, one person will not execute a sale deed. But it may be mentioned here that, that depends upon the relationship between the parties. So court below was perfectly justified in rejecting his contentions, on the ground that, the revision petitioner and the complainant had known to each other for a long time and on that relationship the amount has been paid, though the document was executed for a property transaction.
8. Further the revision petitioner did not send any reply to the notice issued. Non sending of a reply to the notice issued, will only go to show that, since he had nothing to say about the allegations made in the notice, he did not send any reply to the same. That is the first opportunity being given to the revision petitioner to put forth his case regarding the execution of the cheque, which he had not utilised. So under the circumstances, courts below were perfectly justified in coming to the conclusion that, Ext.P2 cheque was executed by the revision petitioner for the amount due, as per Ext.P1 agreement.
9. As regards the other contention is concerned, according to the counsel for the revision petitioner, a blank signed cheque was given even as per Ext.P1 agreement and granted two months time, but within that time, the amount is not paid, he will be getting an authority to fill up and present the cheque, but the date will be deemed to have been the date on which the agreement was executed and if that date is taken, then the presentation of the cheque after two months will make it a stale cheque and then prosecution under Section 138 of the Act will not be attracted. It may be mentioned here that, what is mentioned in Ext.P1 is that, two cheques were given for ₹3,00,000/- and ₹2,37,408/-
and it was not mentioned the date on which it has to be presented. But when PW1 was examined, he had stated that, the cheque for ₹3,00,000/- was given in the month of August and ₹2,00,000/- cheque was given in the month of December. But the date in the cheque is shown as 16.12.2008. So the validity period of cheque will start from 16.12.2008. The evidence is that, a post dated cheque was given and so the date of validity can be taken only from 16.12.2008, till then it will be only a bill of exchange and the cheque was presented within six months from that date. So the submission made by the counsel for the revision petitioner that, it was a stale cheque and no action under Section 138 of the Act will lie, cannot be accepted.
10. He had no case that, the amount covered by the cheque was paid after receipt of the notice. Once it is proved by the complainant that, the amount was not paid within fifteen days on receipt of the notice, then the offence under Section 138 of the Act is complete. So the courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below on this aspect do not call for any interference.
11. As regards the sentence is concerned, the trial court had sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay a fine of ₹2,37,500/-, in default to undergo simple imprisonment for three months more. It is further ordered that, the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)of the Code of Criminal Procedure. This was confirmed by the appellate court. It may be mentioned here that, 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, normally the cheque cases are of the nature of civil dispute, which has been given a criminal colour by virtue of incorporation of the same in the statute. Further the intention of the legislature while making it a penal provision is to see that the drawer of the cheque pays the amount to the payee of the cheque and not to send him to jail. Further, the view has been reiterated in the subsequent decision of the Hon’ble Supreme Court in [2013(4) KLT 350 (S.C.)] Somanath Sarkar v. Utpal Basu Mallick. So once the court has imposed the cheque amount as fine and directed to pay compensation out of the fine amount, invoking the power under Section 357(1)(b) of the Code of Criminal Procedure, then imposing substantive sentence of larger period imprisonment is unnecessary and that is excessive also. So, while confirming the fine and directing to pay compensation out of the fine amount, reducing the substantive sentence of imprisonment till rising of the court will be sufficient and that will meet the ends of justice. So the sentence is modified as follows:
The revision petitioner is sentenced to undergo imprisonment till rising of the court and also to pay a fine of ₹2,37,500/-, and in default to undergo simple imprisonment for three months. 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. Six months time is granted to the revision petitioner to pay the amount. So the revision petitioner is directed to pay the amount on or before 22.05.2015, till then, execution of the sentence is directed to be kept in abeyance.
With the above modification of the sentence alone and granting time, the revision is disposed of. Office is directed to communicate this order to the concerned court, immediately.
Sd/-
K. Ramakrishnan, Judge // True Copy// P.A. to Judge ss