Rajesh C.R. vs Suresh

K. Ramakrishnan, J.—Accused in S.T. No. 209/13 on the file of Judicial First Class Magistrate Court, No-II, North Paravur is the revision petitioner herein.

The case was taken on file on the basis of a private complaint filed by the first respondent herein against the revision petitioner alleging commission of the 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 of Rs. 2,00,000/- and in discharge of that liability, he had issued Ext. P1 cheque dated 09.04.2012 drawn on Union Bank of India, Koovappady branch in favour of the complainant. The complainant presented the cheque for collection and the same was dishonoured for the reason ''funds insufficient'' vide Ext. P3 dishonour memo and the same was intimated to the complainant and the complainant issued Ext. P4 lawyer notice to the revision petitioner intimating the dishonour and demanding payment and this was received by the revision petitioner evidenced by Ext. P5 postal acknowledgment and he had not paid the amount. So, he had committed the offence 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 was examined as PW 1 and one witness was examined as PW 2 and Exts. P1 to P5 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 and he had further stated that he had not committed any offence and in fact, he had borrowed only Rs. 50,000/- and he had given a blank signed cheque which was misused and the present complaint was filed though the amount borrowed was actually paid. No evidence was adduced on his side in defence.

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. 2,00,000/- in default to undergo simple imprisonment for six months. It is further ordered that if the fine is realized, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl. Appeal. No. 547/13 before the Sessions Court, Ernakulam which was made over to Additional Sessions Court, North Paravur for disposal and the learned Additional Sessions Judge by the impugned judgment partly allowed the appeal confirming the order of conviction and payment of fine, but reduced the substantive sentence to imprisonment till rising of court and default sentence to three months simple imprisonment and also confirmed the direction to pay the fine amount as compensation to the complainant. 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 dispute raised, this court felt that the revision can be disposed of at the admission stage itself after hearing the Counsel for the revision petitioner and Public Prosecutor appearing for the second respondent.

The Counsel for the revision petitioner submitted that the evidence of PWs 1 and 2 is not believable and one cannot believe that that a cheque was given long after the execution of Ext. P2 promissory note. That creates doubt and probablise the case of the revision petitioner that a blank singed cheque obtained earlier was misused and the present complaint was filed.

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 revision petitioner borrowed a sum of Rs. 2,00,000/- in the year 2010 and executed Ext. P2 promissory note and when the amount was demanded later, the revision petitioner issued Ext. P1 cheque in discharge of that liability. The case of the revision petitioner was that, he borrowed Rs. 50,000/- and a blank signed cheque was given, that was misused and the present complaint was filed though he had repaid the amount. In order to prove the case of the complainant, complainant himself was examined as PW 1 and one witness was examined as PW 2. PW 2 had deposed that he was present at the time when the revision petitioner borrowed the amount and executed Ext. P2 promissory note and he was also present at the time when Ext. P1 cheque was issued to the complainant by the revision petitioner. Though PWs 1 and 2 were cross examined at length, nothing was brought out to discredit their evidence on this aspect. Further, when PWs 1 and 2 were examined, no suggestion was given to them that he had not executed Ext. P2 promissory note. Further, he did not send any reply to Ext. P4 notice as well. He did not adduce any evidence to prove his case. Once the complainant had proved the borrowal of the amount and issuance of the cheque, then, the burden shifts to the revision petitioner to prove his case. In the absence of such evidence, the presumption under Section 139 and 118 of the Act can be attracted and it can only be presumed that a cheque was issued in discharge of a legally enforceable debt and also the existence of cheque also can be presumed in view of the execution of Ext. P2 promissory note unless the non passing of consideration has to be proved by the revision petitioner which he had not discharged in this case. So, under the circumstances, courts below were perfectly justified in relying on the evidence of PWs 1 and 2 and the presumptions available under Sections 139 and 118 of the Act and rightly came to the conclusion that the revision petitioner 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.

As regard the sentence is concerned, the trial court has sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay a fine of Rs. 2,00,000/- in default to undergo simple imprisonment for six months and further directed to pay the fine amount if realized to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. The appellate court had reduced the substantive sentence imprisonment till rising of court and the default sentence to three months simple imprisonment. So, maximum leniency has been shown by the appellate court in awarding the sentence as well. I don''t find any reason to interfere with the sentence imposed also as it appears to be just and proper.

While this court was about to dispose of the revision, the Counsel for the revision petitioner sought eight months time for payment of the amount. Considering the fact that the case is of the year 2013 and also the amount involved, this court feels that, six months time can be granted for payment of the amount. So, the revision petitioner is granted time till 30.04.2015 to pay the amount directly to the complainant or deposit the amount before the court below. Till then, the execution of sentence is directed to be kept in abeyance, if the petitioner pays the amount directly to the complainant and produces proof of such payment and if the complainant appears before the court below and acknowledges the same, then, the lower court is directed to treat the same as payment of compensation out of fine and record the same in the respective registers as observed in the decisions reported in Beena Vs. The Union of India (UOI) and The Central Bank of India, and Sivankutty Vs. John Thomas, . The amount if any already deposited for suspending the sentence as directed by the appellate court will be adjusted towards this amount and the complainant is permitted to withdraw that amount from that court.

With the above direction and observation, the revision petition is dismissed.

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