Harikumar vs Vasantha Chandran, Jayakrishna

K. Ramakrishnan, J.—When the application came up for hearing today, on going through the concurrent findings of the court below, this court felt that even without hearing the respondent-complainant, the revision can be disposed of. Further, notice issued to the first respondent has been returned as ''not known''. Considering the circumstances and avoid delay in disposal of the revision, this court felt that the revision can be disposed of by hearing the Counsel for the revision petitioner and the Public Prosecutor dispensing with further notice to first respondent.

The Counsel for the revision petitioner submitted that the courts below have not properly appreciated the evidence and the conviction and sentence imposed is not proper.

The learned Public Prosecutor submitted that the courts below have rightly convicted the appellant and the concurrent findings of the court below do not require any interference.

The case was taken on file on the basis of a private complaint filed by the complainant under Section 138 of the Negotiable Instruments Act (hereinafter called ''the Act'')

The case of the complainant in the complaint was that accused borrowed a sum of Rs. 50,000/- and in discharge of that liability, he had issued Ext. P1 cheque dated 08.11.2006. The cheque when presented was dishonoured for the reason ''funds insufficient'' vide Ext. P2 dishonour memo dated 09.11.2006. The complainant issued Ext. P3 notice dated 17.11.2006 on the same day vide Ext. P4 postal receipt and the same was received by the accused on 18.11.2006 evidenced by Ext. P5 postal acknowledgment. He had not paid the amount. So, he had committed the offence punishable under Section 138 of the Act. Hence the complaint.

When the accused appeared before the court below, the particulars of offences were read over and explained to him, he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts. P1 to P5 were marked on his side. After closure of the complainant''s evidence, the accused was questioned under Section 313 of Code of Criminal Procedure and he had denied all the incriminating circumstances brought against him in the complainant''s evidence. He had further stated that he borrowed a sum of Rs. 50,000/- during August 2006 and the amount was paid and the cheque obtained was not returned. No evidence was adduced on his side in defence. 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 30 days and also to pay a fine of Rs. 50,000/- in default to undergo simple imprisonment for 10 days more. If the fine is realized, the same was directed to be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl. Appeal No. 224/10 before the Sessions Court, Kollam which was made over to First Additional Sessions Court, Kollam for disposal by the Sessions Judge and the learned Additional Sessions Judge by the impugned judgment allowed the appeal in part confirming the order of conviction but, modified the sentence by imposing imprisonment till rising of court and directed to pay a compensation of Rs. 55,000/- to the complainant in default to undergo simple imprisonment for two months. Aggrieved by the same, the present revision has been filed.

The case of the complainant was that accused borrowed a sum of Rs. 50,000/- and issued Ext. P1 cheque. But the case of the accused was that he borrowed the amount in the year 2006 and at the time of borrowing the amount, a blank signed cheque was given. Though the amount was paid, the cheque was not returned and misusing the cheque, the present complaint was filed. In order to prove the case of the complainant, the complainant himself was examined as PW1 and he deposed in support of the case. Though he was cross examined at length, nothing was brought out to discredit his evidence on this aspect. Further, the accused did not adduce any evidence to prove his case of discharge or nor he had sent any reply to the notice issued by the complainant when the cheque was dishonoured. So, under the circumstances and in the absence of any rebuttal evidence adduced on the side of the accused, the courts below were perfectly justified in relying on the evidence of PW1 and the presumptions available under Sections 139 and 118 of the Act and rightly convicted him for the offence under Section 138 of the Act and that finding does not call for any interference.

As regards the sentence is concerned, the appellate court had reduced the substantive sentence imprisonment till rising of court and only directed to pay Rs. 55,000/- as compensation with default sentence of two months simple imprisonment which cannot be said to be excessive. Maximum leniency has been shown by the court below in awarding the sentence as well. So, I don''t find any reason to interfere with the sentence as well as it appears to be just and proper. While this court was about to dispose of the revision, Counsel for the petitioner wanted some time for payment of the amount. Considering the amount involved, this court feels that two months time can be granted for payment of the amount. So, the revision petitioner is directed to pay the amount directly to the complainant or deposit the amount before the court below on or before 20.12.2014. If the amount is paid directly and proof of such payment is produced before the court below and acknowledged by the complainant, then, the court below is directed to record that payment in the concerned registers as substantial compliance of the order of this court as provided in Beena Vs. Balakrishnan Nair, and Sivankutty Vs. John Thomas, and permit the petitioner to serve the substantive sentence alone. Till then, the execution of 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.