Krishnankutty vs Radhakrishna Pillai and State of Kerala

P. Bhavadasan, J.—The accused was prosecuted for the offence punishable u/s 138 of the Negotiable Instruments Act. He was found guilty. He was therefore convicted and sentenced to suffer simple imprisonment for a period of three months and was directed to pay a sum of Rs. 40,000/- as compensation to the complainant u/s 357(3) of Cr.P.C, with a default clause of simple imprisonment for a period of two months. In appeal, the lower appellate court confirmed the conviction and but modified the sentence as one to undergo simple imprisonment till rising of the court and to pay fine of Rs. 40,000/-, with a default clause of simple imprisonment for a period of two months. It was also directed that if the fine amount was realized, the same should be given as compensation to the complainant.

The short case put forward by the complainant is that accused had borrowed an amount of Rs. 40,000/- from him and issued a cheque dated 03.03.2003 to him. The said cheque on presentation bounced for want of funds in the account of the accused. A statutory notice issued to the accused neither invoked any reply nor was the amount paid. Hence the complaint was laid.

Cognizance of the complaint was taken. On appearance of the accused, all formalities were complied with. Particulars of the offence were read out to him, to which he pleaded not guilty and claimed to be tried. The power of attorney holder of the complainant was examined as PW1 and had Exts.P1 to P6 marked. After the close of the complainant''s evidence, the accused was questioned u/s 313 Cr.P.C. He denied all the incriminating circumstances brought out against him in the evidence and pointed out that he had issued a blank signed cheque at the time of subscribing a chitty five years ago. He however chose to adduce no evidence in support of his defence.

Both the courts below, on a consideration of the evidence before it, came to the conclusion that the offence had been made out and accordingly convicted and sentenced by the trial court. Sentence was modified by the lower appellate court as already mentioned.

At the time, when this revision petition came up for admission today, the Learned Counsel appearing for the revision petitioner pointed out that the revision petitioner does not wish to address this Court on the merits of the case butonly prays for some time to pay the compensation amount as ordered by the lower appellate court.

However in order to ensure that there is no illegality, irregularity or impropriety in the findings of the courts below, this Court carefully perused the judgments of the courts below.

The power of attorney holder of the complainant has given evidence as PW1, spoke about case in the terms of the complainant. Even though the accused set up a defence that he had issued a blank cheque at the time of subscribing to the chitty, there were no evidence in support of his case. He chose to adduce no evidence also. He admitted the issuance of the Ext.P2. cheque and also signature contained in the cheque. The complainant''s evidence as PW1 is sufficient to prove the due execution of the cheque. In such circumstances the courts below were justified in coming to conclusion that the presumptions available u/s 139 and Section 118 of the Negotiable Instruments Act go in favour of the complainant. There was no attempt to rebut the presumption from the side of the accused. Further there was nothing to show that any reply has been sent to the statutory notice received by the accused and that goes a long way showing his culpability.

It was the above facts and circumstances which had persuaded the courts below to come to the conclusion that the offence had been made out. Findings are entered on appreciation of evidence in the case and are not shown to be perverse warranting interference in the revisional jurisdiction of this Court.

However, the Learned Counsel appearing for the revision petitioner prayed that the revision petitioner may be granted some time to pay the fine amount as ordered by the lower appellate court, so as to ward off the default sentence. In the light of the fact that the revision petitioner has shown his readiness and willingness to pay the amount, it is felt that an opportunity can be given to comply with the order of payment of fine awarded by the courts below.

In the result, while confirming the conviction and sentence passed by the lower appellate court, the revision petitioner is granted two months time from today to pay the fine amount as ordered by the courts below, which on realisation shall be given as compensation to the complainant, failing which the default clause as ordered by lower appellate court shall take effect.