N.N. Geetha Devi vs State of Kerala

K. Ramakrishnan, J.—Accused in S.T. No. 841/06 on the file of Judicial First Class Magistrate Court, No-VIII, Thiruvananthapuram is the revision petitioner herein.

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. 1,50,000/- and in discharge of that liability, he had issued Ext. P1 cheque. The cheque when presented was dishonoured for the reason ''funds insufficient'' vide Ext. P2 dishonour memo. The complainant issued Ext. P3 notice on 15.06.2005 evidenced by Ext. P4 postal receipt and the same was received by the accused on 16.06.2005 evidenced by Ext. P5 postal acknowledgment. The accused had not paid the amount. So, she had committed the offence punishable under Section 138 of the Negotiable Instruments Act.

When the accused appeared before the court below, the particulars of offences were read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, the complainant and her daughter were examined as PWs 1 and 2 respectively and Ext. P1 to P5 were marked on her side. After closure of the complainant''s evidence, the accused 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 her husband had borrowed Rs. 25,000/- from the husband of the complainant and as a security for the same, he had handed over her blank singed cheque. Though he paid the amount, the cheque was not returned. Later, the husband of the complainant died and thereafter, misusing the cheque, the complaint has been filed. In order to prove the same, the husband of the accused was examined as DW 1. No documents were produced on her side.

After considering the evidence on record, the court below disbelieved the evidence of DW 1 and case put forward by the accused and believed the evidence of PWs 1 and 2 and came to the conclusion that the accused borrowed the amount and issued the cheque as claimed by the complainant and convicted her for the offence under Section 138 of the Act and the trial court sentenced her to undergo imprisonment till rising of the court and also to pay the cheque amount of Rs. 1,50,000/- as compensation in default to undergo simple imprisonment for four months under Section 357(3) of Code of Criminal Procedure. Though the revision petitioner filed Crl. Appeal No. 70/12 before the Sessions Court, Thiruvananthapuram which was made over to Additional Sessions Court, No. - II, Thiruvananthapuram, the same was dismissed by the learned Additional Sessions Judge by judgment dated 03.09.2014. Aggrieved by the same, the present revision has been filed by the revision petitioner.

Considering the scope of enquiry involved in the case, this court felt that the revision can be disposed of at the admission stage itself after hearing the Counsel for the revision petitioner and the Public Prosecutor appearing for the first respondent dispensing with notice to the second respondent-the complainant.

The Counsel for the revision petitioner submitted that the evidence of DW 1 and the inconsistencies of the evidence of PWs 1 and 2 will go to show that their case is not believable and the case of the accused is more probable and the courts below were not justified in convicting the appellant for the offence under Section 138 of the Act.

The learned Public Prosecutor supported the concurrent findings of the court below.

The case of the complainant in the complaint was that accused borrowed a sum of Rs. 1,50,000/- and in discharge of that liability, she had issued Ext. P1 cheque. The case of the accused was that her husband borrowed a sum of Rs. 25,000/- from the husband of the complainant and issued her cheque as blank signed cheque and though her husband paid the amount, the husband of the complainant did not return the cheque and after his death, misusing the cheque, the present complaint has been filed. In order to prove the case of the complainant, the complainant was examined as PW 1 and her daughter was examined as PW 2 and they have categorically stated that the accused had borrowed the amount and issued the cheque. They denied the suggestion that the blank signed cheque given by the husband of the accused to the husband of PW 1 was misused and the present complaint was filed. The husband of DW 1 deposed in tune with the defence taken by the accused in the case. But, he had admitted that he had no document to prove the discharge pleaded by him and he had not taken any steps to get back the cheque from the husband of the complainant when he paid the amount. Further, it is also seen from the evidence that though the accused received the notice, she did not send any reply to the same as well. So, all these things will go to show that the case of the accused is not probable and the evidence of DW 1 is not believable as well and courts below have correctly come to the conclusion after evaluation of evidence of PWs 1 and 2 that the complainant had proved the payment of the amount to the accused and the accused issued Ext. P1 cheque in discharge of that liability and also further proved that the cheque was dishonoured for the reason funds insufficient in the account and in spite of notice issued, the accused had not paid the amount. The accused also had no case that she had paid the amount after receipt of the notice. So, under the circumstances, courts below were perfectly justified in coming to the conclusion that the accused had committed the offence punishable under Section 138 of the Act and the concurrent finding of the court below on this aspect do not call for any interference as there is no legal infirmity or illegality committed.

As regard the sentence is concerned, the trial court has imposed a sentence of imprisonment till rising of court and also to pay the cheque amount of Rs. 1,50,000/- to the complainant in default to undergo simple imprisonment for four months and this was confirmed by the appellate court as well. So, maximum leniency has been shown by the courts below even in fixing the compensation amount though the transaction was of the year 2005. So, there is no illegality committed by the courts below in imposing the sentence as well and that also does not call for any interference.

While disposing the revision, the Counsel for the revision petitioner sought time for payment. Considering the amount involved and also considering the fact that the revision petitioner is a lady, this court feels that some more time can be granted for payment of the amount. Four months time is granted to the petitioner to pay the amount. The revision petitioner is granted time till 20.02.2015 to pay the amount. 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.