Jaya Prakash vs Sunil Gopinath

K. Ramakrishnan, J.—Accused in S.T. No. 1062/09 on the file of the Judicial First Class Magistrate Court, Kolenchery is the revision petitioner herein.

The case was taken on file on the basis of a private complaint filed by the complainant-first respondent against the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act.(hereinafter called ''the Act'').

The case of the complainant in the complaint was that revision petitioner borrowed a sum Rs. 1,50,000/- and in discharge of that liability, he had issued Ext. P1 cheque which when presented was dishonoured for the reason ''funds insufficient'' and that was intimated to the complainant by his banker vide Ext. P3 intimation letter. The complainant issued Ext. P6 notice to the revision petitioner intimating the dishonour and demanding payment of the amount vide Ext. P5 postal receipt and the same was received by the revision petitioner evidenced by Ext. P4 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 revision petitioner 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, the complainant himself was examined as PW 1 and Exts. P1 to P6 were marked on his side. After closure of the complainant''s evidence, the revision petitioner was questioned under Section 313 of Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant''s evidence. He had further stated that he had no transaction with the complainant and he had not issued the cheque to the complainant. He had borrowed a sum of Rs. 20,000/- from one Muraleedharan who was examined as DW 1 and issued a blank signed cheque which was misused and the present complaint was filed. In order to prove his case, the said Muraleedharan was examined as DW 1.

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 three months and also to pay a fine of Rs. 1,50,000/- in default to undergo simple imprisonment for two months more. It is further ordered that if the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. This was challenged by the revision petitioner by filing Crl. Appeal No. 528/11 before the Sessions Court, Ernakulam which was made over to Additional Sessions Court, Muvattupuzha and the learned 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.

Since the first respondent had appeared through Counsel in the delay condonation application and expressed his willingness to appear in the revision also, this court felt that the revision can be admitted and can be disposed of on merit today itself after hearing both sides. So, the revision is admitted and heard and disposed of today itself.

The Counsel for the revision petitioner submitted that the evidence adduced on the side of the complainant is not sufficient to prove the case of the complainant that the revision petitioner borrowed the amount and issued the cheque. On the other hand, it will probablise the case of the revision petitioner that the cheque given to Muraleedharan was misused. Further, the evidence of Muraleedharan will go to show that, he is now trying to help the complainant and that was the reason why he is not supporting the case of the revision petitioner. So, he had rebutted the presumption. Further, the Counsel for the revision petitioner had also submitted that the sentence imposed is harsh.

On the other hand, the Counsel appearing for the first respondent submitted that the evidence of DW 1 will go to show that the case of the complainant is established. So, courts below were perfectly justified in convicting the revision petitioner for the offence alleged. The learned Public Prosecutor also supported the submissions made by Counsel for the first respondent.

The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs. 1,50,000/- and in discharge of that liability, the revision petitioner had issued Ext. P1 cheque. The case of the revision petitioner was one of total denial. His case was that he borrowed Rs. 20,000/- from DW 1 Muraleedharan, a blank singed cheque given was misused and the present complaint was filed. In order to prove the case of the complainant, complainant himself was examined as PW 1 and he deposed in support of his case in the complaint. He had further stated that, he went to the bank and withdrawn the amount and paid the same to the revision petitioner. He had admitted that DW 1 Muraleedharan was present at that time. Further, the evidence of DW 1 Muraleedharan examined on the side of the revision petitioner will go to show that the revision petitioner came to him for loan and as requested by him, complainant had withdrawn the amount from the bank and paid the amount to the revision petitioner in his presence and the cheque was executed and delivered by the revision petitioner to the complainant in discharge of that liability. No other evidence was adduced on the side of the revision petitioner to prove his case. The case of the revision petitioner was denied by DW 1 who was examined on his part to prove his case. Further, he did not send any reply to the notice issued as well, that will give an inference that since he had nothing to say about the allegations in the notice, he did not send any reply. So, under the circumstances, the courts below were perfectly justified in disbelieving the case of the revision petitioner and believing the case of the complainant and rightly came to the conclusion that the complainant had proved that the revision petitioner had borrowed Rs. 1,50,000/- and issued Ext. P1 cheque in discharge of that liability and he did not pay the amount in spite of notice issued intimating the dishonour and demanding payment of the amount and thereby, he had committed the offence punishable under Section 138 of the Act and rightly convicted him for the said offence and the concurrent findings of the court below on this aspect do not call for any interference.

The Court below had sentenced him to undergo simple imprisonment for thee months and also to pay a fine of Rs. 1,50,000/- in default to undergo simple imprisonment for two months. It is further ordered that, if the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure and this was confirmed by the appellate court as well.

It is settled law that the offence under Section 138 is basically of civil nature but a criminal colour has been given by introducing the same in the Negotiable Instruments Act. The intention of the legislature is to see that the amount mentioned in the cheque is paid by the drawer to the payee and not to send him to jail. Further, power has been given to the courts to impose fine, not exceeding double the cheque amount and compensation can be awarded out of the fine amount to the complainant. This was so held in the decision reported in Somnath Sarkar Vs. Utpal Basu Mallick and Another, . Further, the same principle has been laid down in the earlier decision in Damodar S. Prabhu Vs. Sayed Babalal H., also. So, under the circumstances, this court feels that the fine amount can be enhanced and imprisonment can be avoided. So, this court feels that sentencing the revision petitioner to undergo imprisonment till rising of court and also to pay a fine of Rs. 2,00,000/- in default to undergo simple imprisonment for two months and further direction to pay the fine amount if realised to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure will be sufficient and that will meet the ends of justice. The Counsel for the revision petitioner is also prays for some time for payment of the amount. He prayed for one month time for payment of the amount. So, the sentence imposed by the court below namely, the revision petitioner had to undergo simple imprisonment for thee months and also to pay a fine of Rs. 1,50,000/- in default to undergo simple imprisonment for two months is set aside and the same is modified as follows:

The revision petitioner is sentenced to undergo imprisonment till rising of court and also to pay a fine of Rs. 2,00,000/- in default to undergo simple imprisonment for two months. If the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Time is granted till 20.12.2014 to the revision petitioner to pay the amount. Till then, the execution of sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and produces proof of payment of the same and if the complainant appears before the court below and acknowledges receipt of the amount, then, court below is directed to treat the same as substantial compliance of payment of the compensation out of fine to the complainant and record the same in the respective registers as provided in the decisions reported in Beena Vs. The Union of India (UOI) and The Central Bank of India, and Sivankutty Vs. John Thomas, and permit the revision petitioner to serve the substantive sentence of imprisonment till rising of court.

With the above direction and observation and reducing the sentence alone, the revision is allowed in part.

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