Imbichi Ali vs Udayan

K. Ramakrishnan, J.—The above revision is filed by the accused in C.C. No. 30/2008 of Judicial First Class Magistrate Court-IV, Kozhikode.

The case was taken on file on the basis of a private complaint filed by the first respondent under section 138 of the Negotiable Instruments Act (herein after called the Act). The case of the complainant in the complaint was that accused borrowed a sum of Rs. 1,50,000/- and in discharge of the liability he had issued Ext. P1 cheque and the cheque when presented was dishonoured for the reason funds insufficient vide Ext. P2 dishonour memo and that was intimated to the complainant by the banker vide Ext. P3 intimation letter. The complainant issued Ext. P4 notice on 14.12.2007 on the same day vide Ext. P5 postal receipt and it was returned with endorsement unclaimed. The accused had not paid the amount. So he had committed the offence punishable under section 138 of the Act that is the complaint.

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, complainant himself was examined as P.W. 1 and Exts. P1 to P6 were marked on his side. After closure of the complainant''s evidence, the accused was questioned 313 of the Code of Criminal procedure (herein after called the Code) and he had denied all the incriminating circumstances brought against him in the complainant''s evidence. He had further stated that there is no transaction between him and the cheque somehow misplaced was taken by the complaint and a false complaint has been filed. But 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 six months and also to pay a fine of Rs. 10,000/- in default to undergo simple imprisonment for two months. It is further ordered that the fine amount is realised Rs. 5000/- has to be paid to the complainant as compensation under section 357(3) of the code. Aggrieved by the same, the revision petitioner filed Crl. Appeal No. 99/2010 before the Sessions Court, Kozhikode and the same was made over to Additional Sessions Court, Kozhikode for disposal and the learned Additional Sessions Judge allowed the appeal in part and confirming the order of conviction but modified the sentence to imprisonment till rising of court and also to pay a fine of Rs. 1,50,000/- in default to undergo simple imprisonment for three months and further directed to pay the fine amount is realised to the complainant as complainant under section 357(1)(b) of the Code. Aggrieved by the same, the present revision petition has been filed by the revision petitioner.

Since the revision petitioner is no more and the revision can be dismissed for default and non impleading of legal heirs or abated and the respondent has appeared through counsel, this court felt that the revision can be admitted and disposed of on merit after hearing the counsel for the revision petitioner and respondents. So the revision is admitted and heard and disposed of today itself.

Heard both sides.

On going through the evidence of P.W. 1, and also in the absence of the evidence adduced on the side of the accused to rebut the presumption under section 139 of the Act, it can be safely concluded that the courts below were perfectly justified in coming to the conclusion that the complainant had proved his case and the accused had committed the offence punishable under section 138 of the Act and rightly convicted him for the offence alleged and the concurrent findings of the courts below do not call for any interference.

As regards the sentence is concerned, the appellate court had modified sentence to imprisonment till rising of court and to pay a fine of Rs. 1,50,000/- in default to undergo simple imprisonment for three months and directed to pay the fine amount if realised to the complainant as compensation. Considering the fact that the revision petitioner is no more. The question of default sentence or undergoing substantive sentence does not arise. However, the appellate court was perfectly justified in imposing the cheque amount as fine as no reasons were given by the court below for reducing the fine to Rs. 10,000/- alone. Further, the appellate court had reduced the substantive sentence till rising of court as well. So, under the circumstances, the fine amount cannot be said to be harsh. However, the fine can be realised only if the properties have been left by the deceased and it is in the hands of the legal heirs.

With the above observation the revision petition is dismissed. Office is directed to communicate this order to the concerned Court immediately.