C. Biju vs Mohanakumaran Nair

P. Ubaid, J.—Aggrieved by the conviction and sentence under Section 138 of the Negotiable Instruments Act in S.T No. 142/2010 of the Judicial First Class Magistrate Court-III, Nedumangad, the accused therein has come up in revision. A cheque for 2,25,000/- issued by him in favour of the 1st respondent herein in discharge of a debt was dishonoured due to insufficient of funds. When he failed to make payment on demand, the 1st respondent initiated prosecution before the trial court.

The revision petitioner entered appearance in the trial court and pleaded not guilty to the accusations. During trial, he maintained a defence that he had no transaction with the complainant, and that a cheque issued by him as security in a transaction of borrowal made by his brother was in fact utilised by the complainant to bring a false claim. The complainant examined himself as PW1 and also marked Exts.P1 to P5. One witness was also examined on the side of the complainant as PW2. In defence, the accused examined himself as DW1. One witness was also examined as DW2. The witness examined on the side of the accused could not prove the defence case that amount was in fact borrowed by the brother of the accused, or that it was only 50,000/- or that the entire debt stands discharged. In such a situation, the trial court believed the evidence of the complainant and found the revision petitioner guilty. On conviction under Section 138 of the Negotiable Instruments Act, he was sentenced to undergo simple imprisonment for six months, and was also directed to pay a compensation of 2,25,000/- to the complainant under Section 357(3) of Cr.P.C.

Aggrieved by the conviction and sentence, the accused preferred appeal before the Court of Session, Thiruvananthapuram as Crl.A 462/2011. In appeal, the learned Additional Sessions Judge confirmed the conviction, but modified the sentence. Accordingly, the jail sentence was reduced to the minimum possible under the law. The direction to pay compensation was, however, maintained. Now, in revision, the accused challenges the the legality and propriety of the conviction and sentence.

On hearing the learned counsel for the revision petitioner and on a perusal of the case records, I find no reason or ground to admit the revision to files. The revision can be dismissed in limine, however granting some time to the revision petitioner to make payment of the compensation as requested by the learned counsel.

The complainant has given definite evidence proving the alleged transaction of borrowal and also issuance of Ext.P1 cheque in discharge of the said liability. Some transaction is admitted by the accused with the complainant, subject to a contention otherwise that the person who actually borrowed amount is his brother, and that the amount borrowed is only 50,000/-. But such a case stands not proved or probabilised to the satisfaction of the court. Ext.P3 statutory notice was sent in time by the complainant, but the revision petitioner did not send reply to the notice. There is no explanation why he did not send reply, and he has no case that he had sufficient funds in his account to honour the, or that the cheque was bounced on some other ground. I find that the complainant has well proved his case on facts regarding the transaction and execution of the cheque in question, and the complainant has also proved compliance of the statutory requirements, I find no irregularity or illegality or impropriety in the conviction made by the courts below.

On a consideration of the circumstances including the amount involved, I feel that some reasonable time can be granted to the revision petitioner as requested by the learned counsel.

In the result, this revision petition is dismissed in limine, without being admitted to files. However, the revision petitioner is granted time for eight months from this date to surrender before the trial court to serve out the sentence and make payment of the compensation voluntarily, on failure of which, steps shall be taken by the trial court to enforce the sentence and recover the amount of compensation, or enforce the default sentence.