Accused in S.T.No.1578 of 2006 on the file of the Judicial First Class Magistrate Court-IX, Thiruvananthapuram is a revision petitioner herein.
2. The case was taken on file on the basis of the private complaint filed by the second respondent as complainant under Section 138 of the Negotiable Instrument Act (hereinafter called the Act). The case of the complainant in the complaint was that the accused and her husband came and borrowed a sum of Rs.4,26,000/- and in discharge of that liability Ext.P1 cheque was issued. The cheque when presented was dishonoured for the reason “funds insufficient” which is evident from Ext.P5 cheque referred and returned register and the complainant issued Ext.P2 notice on 15.09.2006 evidence by Ext.P3 postal receipt and it was received by the accused evidenced by Ext.P4 postal acknowledgment. Ext.P6 statement of accounts of the account of the complainant in the bank to show that he was having source to pay the amount. The accused had not paid the amount. So she had committed the offence punishable under Section 138 of the Negotiable Instrument Act. PW2 is the bank manager who was examined to prove Ext.P5. When the revision petitioner appeared before the court below the particulars offence were read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, PWs.1 and 2 were examined and Exts.P1 to P6 were marked on his side. After course of the complainant's evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and she denied all the incriminating circumstances brought against her in the complainants evidence. She had further stated that she had not borrowed any amount and the husband of the accused had some financial transaction with the complainant and he had misused her cheque and handed over the same to the complainant and after their relationship strained, misusing the cheque, the present complaint has been filed. No defence evidence was adduced on the side of the revision petitioner. After considering the evidence on record, the learned magistrate found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for three months and also to pay Rs.4,26,000/- as compensation to the complainant. In default to under go simple imprisonment for three months more under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appl.No.910 of 2010 before the Sessions Court, Thiruvananthapuram and the same was disposed of by the Additional Sessions Judge-II, Thiruvananthapuram by the impugned judgment whereby the order of conviction and the compensation awarded were confirmed but the substantive sentence of three months imprisonment imposed by the court below was reduced to imprisonment till raising of court. Aggrieved by the same the present revision has been filed by the revision petitioner accused before the court below.
3. Since this court felt that there is no illegality and this 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 first respondent, notice to second respondent was dispensed with.
4. The counsel for the revision petitioner submitted that in fact the cheque was issued from a joint account maintained by the husband of the revision petitioner and the revision petitioner and it was not signed by the husband of the revision petitioner and she was not aware of the issuance of the cheque by her husband to the complainant. Really there was no transaction between herself and the complainant and the cheque was misused by the husband of the revision petitioner for his liability for which the revision petitioner was not responsible and there is no passing of consideration for the cheque issued as per the revision petition is concerned and no offence under Section 138 of the Act is attracted.
5. The learned Public Prosecutor supported the judgment of the courts below.
6. The case of the complainant in the complaint was that both the accused and her husband came and borrowed sum of Rs.4,26,000/- and Ext.P1 cheque in discharge of that liability was issued by the present accused. This fact was denied by the revision petitioner. In order to prove the case of the complainant, the complainant himself was examined as PW1 and in the cross-examination he had categorically admitted that both the accused and husband of the accused had come there and demanded the money and he had paid the amount. He had also stated that he had withdrawn the amount from the account maintained by him and he had also stated that he knew both the accused as well as her husband for the last 15 years. These aspects were not disputed seriously as well. Further on the basis of the directions given by the court he had produced Ext.P6 account extract of the bank account maintained by him in the bank to show that he is having the capacity to raise the amount. Further the fact that the signature in the cheque is that of the revision petitioner and it was issued from a joint account maintained by herself and her husband is not in dispute as well. Once the issuance of the cheque has been proved by the complainant, the burden is on the accused to show that it was not given in discharge of any liability or it was given for some other purpose. But no such evidence was adduced on the side of the accused. Further she did not send any reply to the notice issued by the complainant when the dishonour of cheque was intimated to her. Further the evidence of PW2 who proved Ext.P5 will go to show that there was no sufficient fund in the account of the accused as well. So under the circumstances, there is no merit in the submission made by the counsel for the revision petitioner that the complainant had not proved the offence against the revision petitioner and the courts below were not justified in convicting the revision petitioner for the offence under Section 138 of the Act. The courts below have correctly appreciated the evidence and come to a right conclusion that the revision petitioner had committed the offence punishable under Section 138 of the Act and she had issued the cheque in discharge of a legally enforceable debt in favour of the complainant which was dishonoured for the reason funds insufficient and in spite of notice issued she did not pay the amount. I don't find any reason to interfere with the concurrent finding of the court below regarding the conviction entered against the revision petitioner under Section 138 of the Act.
7. As regards the sentence is concerned, though the court below had awarded three months substantive sentence the same was reduced to imprisonment till raising of court by the appellate court. Further there is nothing wrong in awarding the cheque amount has compensation with default sentence under section 357(3) of the Code of Criminal Procedure as well. So there is nothing to interfere with the sentence imposed by the court below as well as it is just and proper.
8. When the revision was about to be disposed of, the counsel for the revision petitioner submitted that seven months time may be granted for payment of the amount. Considering the fact that the petitioner is a lady and a huge amount is involved, this court feels that seven months time can be granted to the petitioner to deposit the amount. So the petitioner is granted time till 14th May, 2015 he pay or deposit the amount. Till then the court below is directed to keep the execution of sentence in abeyance. If the revision petitioner did not pay the amount, the court below has liberty to take coercive steps to enforce the conviction warrant against the petitioner. If the petitioner pays the amount directly to the second respondent and produces proof of such payment and acknowledged by the complainant by appearing before the court, then the court below can record that payment as substantial compliance and permit the petitioner to undergo the sentence of imprisonment till raising of court on the date of such appearance.
With the above observation, the revision petition is dismissed.
Sd/-
K.RAMAKRISHNAN.
JUDGE.
AS /True Copy/ P.A. to Judge