Accused in C.C.No.508/2006 on the file of the Judicial First Class Magistrate Court, Kothamangalam, is the revision petitioner herein. 2. The complaint was taken on file on the basis of a private complaint, filed by the first respondent under Section 138 of the Negotiable Instruments Act.
3. The case of the complainant in the complaint was that, the accused was a guaranteer for the loan and since the borrower did not pay the amount, accused had undertaken to pay the amount and issued Ext.P1 cheque in discharge of the liability by issuing cheque for ₹ 2,35,000/-
dated 11.05.2006, drawn on State Bank of Travancore, Elappara Branch, in favour of the complainant. The complainant presented the cheque for collection and the same was dishonoured for the reason 'funds insufficient', vide Ext.P3 dishonour memo, which was intimated to the complainant by their banker vide Ext.P2 memo dated 24.06.2006. Complainant issued Ext.P4 notice dated 04.07.2006 and on 07.07.2006 vide Ext.P5 postal receipt. The same was received by the accused, evidenced by Ext.P6 postal acknowledgment. The accused had not paid the amount. So he had committed the offence punishable under Section 138 of the Act. Hence the complaint.
4. When the accused 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 authorised person of the complaint was examined as PW1 and Exts.P1 to P9 were marked on their side. Since the accused was represented by counsel, his examination under Section 313 of the Code was dispensed with. No defence evidence was adduced on his side. 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 four months and also to pay a fine of ₹2,35,000/-, in default to undergo simple imprisonment for two 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.58/2013 before the Sessions Court, Ernakulam, which was made over to Additional Sessions Court, Muvattupuzha for disposal of the case and the learned Additional Sessions Judge allowed the appeal in part, confirming the order of conviction and sentence of fine and a direction to pay compensation, but reduced the substantive sentence of imprisonment to till rising of the court. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below.
5. Considering the scope of enquiry in the revision, this court felt that, the same 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 and dispensing with notice to the first respondent.
6. Heard the counsel for the revision petitioner and the Public Prosecutor.
7. The counsel for the revision petitioner submitted that, except the interested testimony of PW1, no other evidence was adduced on the side of the complainant to prove the transaction. Further he is only a guaranteer for the transaction and the liability to pay the amount is mainly on the principal debtor, who has not been proceeded against and no proceedings have been initiated against him. Further the blank signed cheque obtained at the time of availing loan was misused and the present complaint was filed. So according to the learned counsel, no offence under Section 138 is attracted against the petitioner. The opportunity to cross examine PW1 has been denied by the revision petitioner, that caused prejudice to him.
8. The learned Public Prosecutor supported the concurrent finding of the court below.
9. The case of the complainant in the court below was that, the accused stood as a guaranteer for the loan transaction evidenced by Ext.P8 hire purchase agreement and since the amount was not paid by the principal borrower, the accused came and undertook to pay the amount and issued the cheque. This was denied by the accused. In order to prove the case of the complainant, PW1, the managing partner evidenced by Ext.P9 partnership deed of the complainant's concern was examined and he proved the transaction. The application for adjournment for cross examination of PW1 was declined at the time when PW1 was examined. Later, the accused filed an application for recalling PW1 and that was allowed on payment of cost of ₹1,000/-, but the accused did not pay the amount. So the recalling of PW1 was dis-allowed. Thereafter, he did not adduce any evidence also. The opportunity given to him to recall PW1 by payment of cost has not been availed by the accused. If a person has not availed the opportunity given, then he is estopped from contending that he has been denied the opportunity of cross examination and thereby prejudice has been caused to him. Further, the evidence of PW1 will go to show that, the accused is a guaranteer and since the principal borrower did not pay the amount, he had undertaken to pay the liability, which is seen in Ext.P7 hire purchase ledger and issued Ext.P1 cheque in discharge of that liability.
10. It is settled law that, even if the cheque was issued by a person undertaking the liability of another, even then the offence under Section 138 of the Act will be attracted as against that person, if the other conditions are satisfied. In this case, except the evidence of PW1, no evidence has been adduced on the side of the accused. The evidence of PW1 clubbed with the documentary evidence produced and in the absence of evidence adduced on the side of the accused, court below were perfectly justified in coming to the conclusion that the accused had issued Ext.P1 cheque in discharge of the liability, which is due from him also as a guaranteer undertaking the liability of the principal borrower and the cheque was dishonoured for 'funds insufficient' and the accused had not paid the amount and thereby he had committed the offence punishable under Section 138 of the Act. Further he did not send any reply to the notice issued as well. So under the circumstances, the courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent finding of the court below on this aspect do not call for any interference, as no infirmity or illegality has been committed by the court below in appreciating the evidence.
11. As regards the sentence is concerned, the court below had imposed a sentence of four months simple imprisonment along with payment of fine of the cheque amount with default sentence and directed to pay the fine amount if realised to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. The appellate court though confirmed the later part of the sentence, namely fine and direction to pay the compensation out of the fine, reduced the substantive sentence of imprisonment, till rising of the court. So maximum leniency has been shown by the appellate court in awarding the sentence as well. I do not find any reason to interfere with the same, as it appears to be just and proper. While this court was about to dispose of the revision, the counsel for the revision petitioner wanted some more time for payment. Considering the amount involved, this court feels that, five months time can be granted for payment of the amount. So the revision petitioner is granted time, till 23.03.2015, to pay the amount or deposit the amount in court, till then the execution of the sentence is directed to be kept in abeyance.
With the above direction and observation, the revision petition is dismissed. Office is directed to communicate this order to the concerned court, immediately.
Sd/-
K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss