K.P. Preetha vs Sameer T.P.

K. Ramakrishnan, J.—The accused in STC. No. 2908/2006 on the file of the Judicial First Class Magistrate Court-I, Kannur, is the revision petitioner herein.

The case was taken on file on the basis of a private complaint filed by the 1st respondent against the revision petitioner, alleging offences under Section 138 of the Negotiable Instruments Act (hereinafter called ''the Act''). The case of the complainant in the complaint was that, the revision petitioner borrowed a sum of Rs. 2,50,000/-, and in discharge of that liability, she had issued Ext.P1 cheque which when presented was dishonoured for the reason, "funds insufficient" vide Ext.P2 dishonour memo. The complainant issued Ext.P3 notice vide Ext.P4 postal receipt, and the same was received by the revision petitioner evidenced by Ext.P5, Postal Acknowledgment Card. The revision petitioner had not paid the amount, so she 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 offence were read over and explained to her, and she pleaded not guilty. In order to prove the case of the complainant, the Power of Attorney Holder of the complainant authorized by Ext.P6, Power of Attorney was examined as PW1 and Exts.P1 to P6 were marked on his side. After closure of the complainance evidence, the revision petitioner was questioned under Section 313 of Code of Criminal Procedure, and she denied all the incriminating circumstances brought against her in the complainant''s evidence. She had further stated that she had no transaction with the complainant, and in fact her husband had some financial transactions with the complainant, and as a security for the same, her blank signed cheque was given, which was misused and the present complaint was filed. But no defence evidence was adduced on her side to prove her case. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for one month and also to pay the cheque amount of Rs. 2,50,000/- as compensation to the complainant, in default, undergo simple imprisonment for six months more under Section 357(3) of Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal. No. 507/2008 before the Sessions Court, Thalassery, and it was made over to First Additional Sessions Court, Thalassery for disposal. The learned Additional Sessions Judge by the impugned judgment allowed the appeal in part, confirming the order of conviction and direction to pay compensation, but reduced the substantive sentence to imprisonment till rising of court and default sentence to two months. Aggrieved by the same, the present revision has been filed by the revision petitioner-accused before the court below.

Considering the scope of enquiry and nature of defence taken, this court felt that the revision can be disposed off at the admission stage itself, after hearing the Counsel for the revision petitioner and the Public Prosecutor appearing for the second respondent, dispensing with notice to the 1st respondent.

The Counsel for the revision petitioner submitted that, the complainant was not examined in this case, and only the Power of Attorney Holder was examined and he had no direct knowledge about the transaction, and his evidence is not sufficient to prove the transaction as well as the execution of the cheque. Further there is contradictions in his evidence, regarding the amount paid also. So under the circumstances, the courts below were not justified in convicting the revision petitioner for the offence under Section 138 of the Act and prayed for acquittal.

On the other hand, the learned Public Prosecutor supported the concurrent findings of the court below on this aspect.

The case of the complainant in the complaint was that, the revision petitioner borrowed a sum of Rs. 2,50,000/- and in discharge of that liability, she had issued Ext.P1 cheque. The case of the revision petitioner was that, she had no transaction with the complainant but, her husband had some money transactions for which her blank signed cheque was given as security. It is true that the complainant in this case was not examined, as he was abroad, and on the basis of Ext.P6, Power of Attorney given, his brother in law was examined as PW1 and he had deposed that, he was present at the time when the transaction had taken place and it was in his presence that the complainant had given Rs. 2,50,000/- to the revision petitioner, and the revision petitioner brought the cheque duly filled, signed and delivered the cheque to the complainant. It is true that in the cross examination, he had stated the amount borrowed as Rs. 2,60,000/-, but in the re-examination it was corrected as Rs. 2,50,000/-. So it cannot be said that it is a material contradiction so as to disbelieve his case regarding the transaction.

It is true that, the Power of Attorney is not competent to give evidence, or his evidence cannot be substitute for the evidence of the complainant which were in the personal knowledge of the complainant. But at the same time, if the Power of Attorney Holder has personal knowledge about the transaction, then there is no bar for him to adduce evidence and it is for the court to evaluate his evidence as to whether it is sufficient for conviction without examining the complainant. In this case PW1 had categorically stated that, he was present at the time when the transaction had taken place and in fact his presence was strengthened in the cross examination: So there is no merit in the submission made by the Counsel for the revision petitioner, that the evidence of PW1 is not sufficient to prove the transaction and non examination of complainant is fatal in this case.

Once the execution of the cheque is proved by the complainant, then the burden is on the revision petitioner to disprove that fact, either by adducing independent evidence or bringing facts in the evidence of the complainant by preponderance of probabilities to strengthen her case. The suggestion given to PW1 that the blank signed cheque was given as security for the transaction between the complainant under her husband was denied by PW1. In this case the revision petitioner did not send any reply to the notice issued by the complainant when the cheque was dishonoured. It is true, that non sending of reply notice alone is not sufficient to come to the conclusion that the complainant had proved the case, and that will not absolve the liability of the complainant to prove his case. But it can be taken as one of the circumstances against the revision petitioner, as she had nothing to say about the transaction and that was the reason why she did not sent any reply to the notice issued by the complainant when the cheque was dishonoured. Further she did not adduce any evidence to prove the transaction between her husband and the complainant and her giving the cheque as security for that transaction. So in the absence of any evidence adduced on the side of the revision petitioner to prove her case regarding the circumstances under which her cheque had reached the hands of the complainant, the courts below were perfectly justified in relying on the evidence of PW1 and the statutory presumptions available under Sections 139 and 118 of the Act, to come to the conclusion that the revision petitioner had borrowed the amount and issued Ext.P1 cheque in discharge of that liability, and since she did not pay the amount in spite of intimating the dishonour, she had committed the offence punishable under Section 138 of the Act, and rightly convicted her for the said offence, and the concurrent findings of the court below on this aspects do not call for any interference.

As regards the sentence is concerned, the court below had sentenced her to undergo simple imprisonment for one month, and also to pay the cheque amount of Rs. 2,50,000/- as compensation, in default to undergo simple imprisonment for six months under Section 357(3) of Code of Criminal Procedure. But the appellate Court had reduced the substantive sentence to imprisonment till rising of court and default sentence to two months, while retaining the direction to pay compensation of the cheque amount to the complainant under Section 357(3) Code of Criminal Procedure. Maximum leniency has been shown by the appellate court in imposing the sentence as well which cannot be said to be excessive, so as to enable this court to interfere with the sentence imposed also.

While this court was about to dispose of the case, the counsel for the revision petitioner prayed for ten months time for payment of the amount. However considering the fact that the case of the year 2006, the time sought for is on the higher side. But at the same time, this court feels that some time can be granted to the revision petitioner to pay the amount. So six months time is granted to the revision petitioner to pay the amount. Revision petitioner is granted time till 10-6-2015 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 the same before the court below and the complainant or his authorized agent appears before the court below and acknowledges the payment then court below is directed to treat the same as substantial complainance of payment of compensation as directed by the courts below and confirmed by this court, and enter the same in the respective registers as provided in Beena vs. Balakrishnan Nair and Another [2010 (2) KLT 1017] and Sivankutty Vs. John Thomas, , and permit the revision petitioner to serve the substantive sentence of imprisonment till rising of court.

With the above observations the revision petition is dismissed. Office is directed to communicate the order to the concerned court immediately.