The accused in S.T.No.7526/2011 on the file of the Judicial First Class Magistrate Court-II (Mobile), Kozhkide is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent/ complainant under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act). 2. The case of the complainant in the complaint was that the revision petitioner availed a loan of Rs.One lakh and he had committed default in payment of the amount and in discharge of that liability, he had issued Ext.P2 cheque for an amount of Rs.81,584/-, which when presented was dishonoured for the reason funds insufficient evidenced by Ext.P3 dishonour memo. The complainant issued Ext.P4 notice vide Ext.P5 postal receipt and the same was returned with the endorsement unclaimed. The revision petitioner had not paid the amount. So he committed the offence punishable under Section 138 of the Act.
3. When the revision petitioner appeared before the court below, particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, authorised representative of the complainant was examined as PW1 and Exts.P1 to P10 were marked on his side. After closure of the complainants' evidence, the revision petitioner was questioned under Section 313 of the code and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that the blank signed cheque given was misused and the amount shown in the cheque is not due. He had produced Exts.D1 and D2 and no other evidence was adduced. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and sentenced him to undergo simple imprisonment for three months and also to pay fine of Rs.1,05,000/-, in default to undergo simple imprisonment for three months. It is further ordered that if the fine amount is realized, the same be paid to the complainant as compensation under Section 357 (1) (b) of the Code. Aggrieved by the same, the revision petitioner filed Crl.A.No.354/2014 before the Sessions Court, Kozhikode , which was made over to the the Third Additional Sessions Court, Kozhikode for disposal and the learned Additional Sessions Judge allowed the appeal in part confirming the conviction and direction to pay compensation with default sentence but reduced to substantive sentence of imprisonment till the rising of court . That is being challenged by the revision petitioner.
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 Public Prosecutor appearing for the the second respondent.
5. The counsel for the revision petitioner submitted that the evidence adduced has not been properly appreciated and the conviction entered is not proper.
6. The learned Public Prosecutor supported the concurrent findings of the courts below.
7. The case of the complainant in the complaint was that the revision petitioner had borrowed Rs.One lakh and he had committed default in payment of the amount and an amount of Rs.81,584/- was due and in discharge of that liability, he had issued Ext.P2 cheque. The case of the revision petitioner was that he had given blank signed cheque in the year 2004 as security when loan was taken which was misused and the present complaint was filed. In order to prove the case of the complainant, authorised agent of the complainant was examined as PW1 and he deposed in support of the complainant's case. He denied the suggestion that Ext.P1 blank signed cheque was obtained as security when the loan was disbursed. Further Ext.D2 extract of the cheque issue register produced by the revision petitioner himself will go to show that the cheque was issued only on 13.5.2005 and so there was no possibility of handing over Ext.P2 cheque in the year 2004 when the loan was taken as claimed by him. So the courts below have correctly come to the conclusion that the case of the revision petitioner is not probable or believable and rightly believed the case of the complainant and convicted the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below do not call for interference.
8. As regards the sentence is concerted, the court below had sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay fine of Rs.1,05,000/-, in default to undergo simple imprisonment for three months and directed the fine amount, if realized, be paid to the complainant as compensation under Section 357(1) (b) of the Code. The appellate court had reduced the substantive sentence till the rising of court while confirming the other portion of the sentence. So maximum leniency has been shown by the appellate court in imposing the sentence and I do not find any reason to interfere with the sentence as it appears to be just and proper.
9. While this Court about to dispose of the revision, the counsel for the revision petitioner prayed for six months time for payment of the amount. Considering the amount involved, this Court feels that some time can be granted to the revision petitioner to pay the amount. The revision petitioner is granted time till 12.6.2015 to pay the amount. Till then, execution of the sentence is directed to be kept in abeyance.
With the above directions and observations, the revision petition is dismissed.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge