Balasubramanian vs Sudarsanan

K. Ramakrishnan, J.—The accused in C.C. No. 195/2009 on the file of the Judicial First Class Magistrate Court-II, Cherthala is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant/first respondent herein against the revision petitioner alleging commission of the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act).

The case of the complainant in the complaint was that the accused borrowed a sum of Rs. 90,000/- and in discharge of that liability, he had issued Ext. P1 cheque dated 18.7.2008 and the same was presented earlier for collection and that was dishonoured evidenced by Exts. P2 and P3 dishonour memos dated 25.7.2008. Again the cheque was presented and the same was dishonoured for the same reason evidenced by Ext. P4 dishonour memo dated 14.8.2008. The complainant issued Ext. P5 notice vide Ext. P6 postal receipt. The same was received by the accused evidenced by Ext. P7 postal acknowledgment. He had sent Ext. P8 reply notice showing false allegations and he did not pay the amount. So he had committed the offence punishable under Section 138 of the Act. Hence the complaint.

When the revision petitioner appeared before the court below, particulars of offences were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, Pws 1 and 2 were examined 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 the Code and he had denied all the incriminating circumstances brought against him. The revision petitioner had further stated that the brother-in-law of the complainant was working as a Supervisor under him during 2002 and he used to hand over signed blank cheques to him whenever materials were supplied and he had created financial irregularities and he was dismissed from service and misusing one of the cheques entrusted to him, the present complaint has been filed. No defence evidence was adduced on his side. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay cheque amount of Rs. 90,000/- as compensation to the complainant, in default to undergo simple imprisonment for 15 days under Section 357(3) of the Code. Aggrieved by the same, he filed Crl.A.130/2013 before the Sessions Court, Alappuzha, which was made over to 1st Additional Sessions Court, Alappuzha for disposal and the 1st Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed by the court below. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below.

Heard both sides.

The learned counsel for the revision petitioner argued that the evidence of PW1 will go to show that his brother-in-law was working as a Supervisor under the revision petitioner and that probablise the case of the accused that blank signed cheques given for obtaining materials have been misused and the present complaint was filed when he was dismissed from service and he has been rebutted the presumption under Section 139 of the Act. Further, the complainant had no income of his own to pay so much amount. So the courts below were not justified in convicting the revision petitioner for the offence under Section 138 of the Act. Further the sentence imposed is also harsh.

On the other hand, the learned counsel for the first respondent submitted that he had produced Ext. P9 passbook to prove that he is having sufficient funds and except the suggestions given, no other evidence was adduced on the side of the revision petitioner to prove his case. So the courts below were perfectly justified in convicting the revision petitioner for the offences alleged.

The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs. 90,000/- and in discharge of that liability, issued Ext. P1 cheque which was drawn by Lord Krishna Bank which was later amalgamated to the HDFC bank. In order to prove this fact, PW2 Branch Manager of the HDFC bank was examined and he had deposed that the cheque was presented in their bank and Exts. P2 to P4 are the dishonour memos issued from their branch. Further the evidence of Pw1 coupled with Ext. P9 passbook will go to show that he is having sufficient means to raise the amount and pay the amount to the revision petitioner. So the case of the revision petitioner that he has no means to pay the amount is without any basis. Further, he did not take any action against the brother-in-law of the complainant for misusing his cheque so far. Really, if cheque was misused, he would not have kept quite as he is not a layman and he is doing contract work with a Supervisor to supervise as well. So under the circumstances, the courts below were perfectly justified in rejecting the case of the revision petitioner and believing the evidence of PW1 coming to the conclusion that the complainant had proved borrowal of the amount by the revision petitioner and issuance of Ext. P1 cheque in discharge of that liability and rightly convicted him for the offence under Section 138 of the Act, which do not call for any interference as no illegality has been committed by the courts below on facts in arriving at such a conclusion.

As regards the sentence is concerned, the trial court has sentenced him to undergo simple imprisonment for three months and also to pay the cheque amount of Rs. 90,000/- as compensation, in default to undergo simple imprisonment for 15 days more. This was confirmed by the appellate court as well.

It is settled law that basically cases under section 138 of the Act are quasi civil in nature but by virtue of inclusion of Section 138 of the Act which has been given the colour of criminal offence. Further, the intention of the legislature was to make drawer of the cheque to pay the amount and enable the payee of the cheque to recover the amount from the drawer and not to send him behind the bars.

In the decision reported in Somnath Sarkar Vs. Utpal Basu Mallick and Another, , the Hon''ble Supreme Court has held that it is always not necessary to have imprisonment as a compulsory punishment and the fine imposed can be fixed so to as compensate the loss caused to the complainant on account of the delay in payment of the amount. So considering the fact that the case is of the year 2009, this Court feels that imposing fine of Rs. One lakh with default sentence of four months imprisonment and also to undergo imprisonment till the rising of the court as substantive imprisonment and directing fine amount if realised to be paid to the complainant as compensation will be sufficient and that will meet the ends of justice. So the three months simple imprisonment and to pay the cheque amount of Rs. 90,000/- as compensation are set aside and the same is modified as follows:

"The revision petitioner is sentenced to undergo imprisonment till the rising of court and also to pay fine of Rs. One lakh, in default to undergo simple imprisonment for four months. If the fine amount is realized, the same is directed to be paid to the complainant as compensation under Section 357(1) of the Code. If the revision petitioner pays the amount directly to the complainant and produces proof of the same and it was acknowledged by the complainant in the court below, then the lower court is directed to treat the same as substantial compliance of the payment of compensation out of fine and record this in the respective registers and permit the petitioner to undergo substantive sentence of imprisonment till the rising of court as provided under the decisions reported in Beena Vs. Balakrishnan Nair, and Sivankutty Vs. John Thomas, ."

The counsel for the revision petitioner prayed six months time to pay the amount. This was objected by the counsel for the 1st respondent. 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 4.4.2015 to pay the amount. Till then execution of the sentence is directed to be kept in abeyance.

With the above modification of the sentence alone, the revision petition is allowed in part.

Office is directed to communicate this order to the concerned court immediately.