Accused in C.C.No.492/08 on the file of the Judicial First Class Magistrate Court, Chavakkad is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the first respondent herein 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 a sum of Rs.4,00,000/- on 20.03.2004 and in discharge of that liability, he had issued Ext.P1 and P2 cheques and also acknowledged the liability as per Ext.P3 agreement. The cheques when presented were dishonoured for the reason 'funds insufficient' vide Ext.P4 and P5 dishonour memos. The complainant issued Ext.P8 notice vide Ext.P6 postal receipt and the same was returned as 'unclaimed' evidenced by Ext.P7 returned 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 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 P9 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 was conducting the rice business along with the first respondent in partnership. He had given two blank signed cheques as security for return of the amount, but, the partnership failed and cheques were misused and the present complaint was filed. In order to prove his case, DW1 was examined and Ext.D1 to D3 were marked.
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 amount of Rs.5,50,000/-(4,00,000+7% interest for 63 months and expenses) in default to undergo simple imprisonment for three months. Aggrieved by the same, the revision petitioner filed Crl.Appeal.No.468/10 before the Sessions Court, Thrissur and the learned Sessions Judge allowed the appeal in part confirming the order of conviction and sentence of fine with default sentence, but, reduced the substantive sentence to imprisonment till rising of court and further directed to pay the fine amount if realised to the complainant as compensation under 357(1)(b) of Code of Criminal Procedure and further directed that, if any suit has been filed for recovery of the amount, the amount now realised is directed to be adjusted as provided under Section 357(5) of the Code of Criminal Procedure. Aggrieved by the same, the present revision has been filed.
6. Heard both sides.
7. The Counsel for the revision petitioner submitted that the courts below have not properly appreciated the evidence adduced on the side of the accused by examining DW1 and producing Ext.D1 to D3. Further, that will probablise the case of the revision petitioner that the revision petitioner and the first respondent were conducting business on partnership basis and as a security for the repayment of the capital amount advanced by the complainant, the cheques were given which were misused and the present complaint was filed. Further the amount of fine fixed is also exorbitant.
8. On the other hand, Counsel for the first respondent submitted that the courts below have properly appreciated the evidence and rightly convicted him for the said offence and the fine imposed is also proper.
9. The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs.4,00.000/- and in discharge of that liability, he had issued Ext.P1 and P2 cheques. The case of the revision petitioner was one of total denial. But, according to him, there was a partnership arrangement between them and for security for repayment of the amount advanced, two blank signed cheques were given. In order to prove the case of the complainant, the complainant himself was examined as PW1 and he deposed in support of his case in the complaint. Though he was cross examined at length, nothing was brought out to discredit his evidence on this aspect. Further, he had produced Ext.P9 agreement entered into between the complainant and the revision petitioner to prove that the revision petitioner had acknowledged the liability and also issuance of the cheques for that purpose. The revision petitioner had no case that Ext.P9 was not executed by him. DW1 was examined on the side of the revision petitioner to prove that the revision petitioner was conducting rice business. Further, Ext.D1 to D3 were produced to prove that the rice was purchased from complainant by the revision petitioner. But, that alone is not sufficient for come to the conclusion that these cheques were given in respect of this transaction. Further, he had no explanation regarding Ext.P9 agreement executed by him. The notice sent was returned with endorsement 'unclaimed' in spite of intimation given. That also shows that he has nothing to say about the transaction mentioned in the notice. He did not prove that the cheques were issued as security for some other transaction. So, under the circumstances, courts below were perfectly justified in not accepting the evidence of DW1 or Ext.D1 to D3 to come to the conclusion that the revision petitioner had discharged his burden of rebutting the presumption. So, under the circumstances, courts below were perfectly justified in coming to the conclusion that the case of the revision petitioner is not believable or probable and rightly believed the evidence of PW1 and convicted him for the offence under Section 138 of the Act and the concurrent findings do not call for any interference.
10. The Counsel for the revision petitioner submitted that the sentence imposed is harsh. The trial court sentenced him undergo simple imprisonment for six months and also to pay a fine of Rs.5,50,000/- (4,00,000 + 7% interest for 63 months and expenses) in default to undergo simple imprisonment for three months. The appellate court had confirmed the order of fine and default sentence, but, reduced the substantive sentence to imprisonment till rising of court and further ordered the fine amount be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure.
11. The court below had granted interest from the date of cheque. It is true that the courts have the power to impose double the cheque amount as fine. But, at the same time, it cannot act as a Civil court for realisation of the amount as though a civil decree is passed with interest as well. Further, fine amount has to be quantified for which interest can be added, but, it should not be a fluctuating amount. So, considering these aspects, this court feels that fixing the fine amount as Rs.5,00,000/- will be sufficient and that will meet the ends of justice. So, the revision petitioner is sentenced to undergo imprisonment till rising of court and also to pay a fine of Rs.5,00,000/- in default to undergo simple imprisonment for three months and 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. Three months time is granted to the revision petitioner to pay the amount. So, time is granted till 15.03.2015 to pay the amount. Till then, the execution of sentence is directed to be kept in abeyance. If the compensation out of fine is paid to the complainant and if any civil suit has been filed and decree obtained, this amount is directed to be adjusted towards the decree amount obtained on the basis of the same cheques through the Civil Court as provided under Section 357(5) of Code of Criminal Procedure.
With the above modification of the sentence alone, the revision petition is allowed in part and disposed of accordingly.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge