P.V. Varghese vs K.P. Padmanabhan Nair and another

V.K. Mohanan, J.—This revision petition is preferred by an accused in a prosecution for the offence u/s 138 of the Negotiable Instrument Act as he is aggrieved by the conviction and sentence imposed against him.

The case of the complainant against the revision petitioner is that towards the discharge of the debt of Rs. 2,70,000/- which was due to the complainant, the revision petitioner issued two cheques, one for Rs. 1,20,000/- which is dated 31.12.2006 and another cheque dated 31.03.2007 for Rs. 1,50,000/- and when those cheques were presented for encashment, returned as dishonoured for want of sufficient funds in the account maintained by the revision petitioner. According to the complainant, though a formal demand was made through the counsel intimating him the dishonour of the cheques and demanding for repayment of the amount covered by the two cheques but no payment was made and hence he approached the Judicial First Class Magistrate-V, Kottayam with the above allegation. The learned Magistrate took cognizance for the offence u/s 138 of the N.I. Act and instituted S.T. No. 2039/2007. During the course of the trial, the complainant himself examined as PW1 and he gave oral evidence and besides the above he produced Exts. P1 to P8 documents. Absolutely no evidence was adduced from the side of the defence. The learned Magistrate, after considering all the materials and evidence on record, has held that the complainant has established the execution and issuance of Ext. PI series of cheques and accordingly held that the complainant is entitled to get benefit of presumption u/s. 118 and 139 of the N.I. Act. Thus, the trial court found the revision petitioner guilty and accordingly convicted him u/s. 138 of the N.I. Act and sentenced him to undergo simple imprisonment for two months and also directed to pay a sum of Rs. 2,70,000/- to the complainant as compensation as envisaged u/s. 357(3) of Cr.P.C. and default sentence is fixed as 15 days simple imprisonment. Challenging the above verdict, the conviction and sentence, the revision petitioner has preferred Crl. A. No. 286/2009, but by judgment dated 06.02.2010 the learned Sessions Judge, Kottayam dismissed the appeal. It is the above judgments of the courts below and the conviction and sentence imposed against the revision petitioner, challenged in this revision petition.

I have heard Sri. Mathew John, the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below.

On a consideration of the arguments advanced by the learned counsel for the revision petitioner and on perusal of the judgments, it appears that the accused/revision petitioner has admitted the execution and issuance of the cheques, though not as claimed by the complainant. According to the accused/revision petitioner the two cheques which are the subject matter in the present transaction, along with two other cheques hand over to the son of the complainant by way of security towards the repayment of an amount of Rs. 50,000/- borrowed by the accused from the son of the complainant. The trial court as well as the lower appellate court has considered the above plea of the revision petitioner. Admittedly no materials or evidence produced by the revision petitioner to substantiate the above contention. When the accused in a transaction for the offence u/s. 138 of the N.I. Act. admits the execution and issuance of the cheque, though not as claimed by the complainant or connected with the transaction pleaded by the complainant, it is heavily upon the accused to substantiate his pleading as to how the cheque in question reached in the hands of the complainant and also to establish that the same were reached in the hands of the complainant through the transaction claimed by him. But in the present case no such materials or evidence produced. Therefore, I find no fault with the finding and facts arrived on by the trial court as well as lower appellate court in favour of the complainant, on the basis of the materials and evidence furnished by the complainant. Therefore, in the absence of any specific case to exercise the revisional jurisdiction of this court to interfere with the concurrent finding of the court below, I have to approve the conviction recorded by the trial court as well as the lower appellate court against the revision petitioner.

The learned counsel for the revision petitioner submitted that breathing time may be granted to the revision petitioner to make the payment and leniency may be shown in the matter of sentence. Considering the facts and circumstances of the case, I am of the view that the said submission can be considered favourably in favour of the revision petitioner but subject to other relevant inputs.

It has to be noted that the two cheques in question dated 31.12.2006 and 31.03.2007 were for a total sum of Rs. 2,70,000/-. Thus going by the evidence on record it is crystal clear that a total sum of Rs. 2,70,000/- which belonging to the complainant is with the revision petitioner. The trial court after finding the guilt of the revision petitioner sentenced him to undergo simple imprisonment for two months and further directed to pay a sum of Rs. 2,70,000/- to the complainant as compensation, in case of any default, the revision petitioner is directed to undergo simple imprisonment for 15 days. In the decision of the Supreme Court in Chittaranjan Mirdha Vs. Dulal Ghosh and Another, , the Apex Court has held that no default sentence can be imposed on failure of paying the compensation as directed under Sec. 357(3) of Cr.P.C. The Apex court has also held in the decision in Damodar S. Prabhu v. Sayed Babulal. H represented in. 2010 (2) R.C.R. (Cril) 851 : 2010 (3) R.A.J. 180 : J.T. 2010 (4) SC 457 that in the case of dishonour of cheque the court has to consider the remedial aspect than the punitive aspect. Considering the above settled legal position and considering the fact that a sum of Rs. 2,70,000/- was in the hands of the revision petitioner for more than 4 years. I am of the view that the sentence of imprisonment can be reduced and the sentence of fine can be imposed, fixing the fine amount little more than the cheque amount and the default sentence can be fixed so as to ensure the payment of the amount to the complainant.

In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec. 138 of the N.J. Act as recorded by the trial court as well as lower appellate court. Accordingly the revision petitioner is sentenced to undergo a simple imprisonment till the rising of the court and he is also sentenced to pay a fine of Rs. 3,00.000/- and in default in paying the fine amount, he is directed to undergo simple imprisonment for a period of six months and on realisation of the fine amount, a sum of Rs. 2,95,000/-shall be paid to the complainant under Sec. 357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 2.9.2010 so as to receive the sentence and to pay the fine amount. If there is no failure on the part of the revision petitioner in appearing before the court below as directed above and making the fine amount, the trial court is free to initiate coercive steps to secure the presence of the revision petitioner and to execute the sentence. The execution of the warrant, if any, pending against the revision petitioner shall be deferred till 2.9.2010.