Shamsudheen vs Asharaf and State of Kerala

Justice P. Bhavadasan

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 15 days and to pay a sum of Rs. 1,35,000/- as compensation to the complainant, with a default clause of simple imprisonment for six months. In appeal, the lower appellate court confirmed the conviction and sentence passed by the trial court and dismissed the appeal.

The short case of the complainant is that, the accused had borrowed a sum of Rs. 1,25,000/- from him on 07.12.2002 and in order to discharge the said debt Ext.P1 cheque was issued. The cheque on presentation bounced for want of funds in the account of the accused. A statutory notice issued to the accused invoked no reply. Since the amount remained unpaid, complaint was laid.

Cognizance of the offence 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 complainant therefore examined himself as PW1 and had Exts.P1 to P5 marked. After the close of the complainant''s evidence, the accused was questioned u/s 313 Cr.P.C. He denied all the incriminating circumstance brought out against him in the evidence. In support of his defence he examined DWs 1 to 4 and had Exts.D1 to D5 marked.

Both the courts below, on a consideration of the evidence before it, came to the conclusion that the complainant had succeeded in establishing the case against the accused and the defence set up by the accused is not sufficient to prove his case. Accordingly the accused was found guilty and convicted and sentenced as already mentioned.

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 and only prays for four weeks time to pay the compensation amount as ordered by the courts below and also prays that some leniency be shown with regard to the substantive sentence.

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 accused examined himself as DW4 and has spoken about his case. According to him, he had borrowed a sum of Rs. 25,000/- from one Aravindakshan, who was examined as DW1 through PW1. At that time he had given a blank signed cheque to PW1, who had insisted for the same. Though he had discharged the said debt, the cheque was not returned to the accused by the complainant and that has been misused. Further case was,that there was an agreement between PW1 and the accused in the year 1995, with respect to a property transaction. The accused failed to purchase the property and the advance amount paid by the accused to the complainant was not returned by the complainant. In support of his case, he had examined DWs 1 to 4 and had Exts.D1 to D5 marked.

Both the courts below independently found that evidence of DW1 to 4 are of no use to the accused. The evidence furnished by the accused was insufficient to substantiate his case. In fact one of the witness spoke against the case put forward by the accused and the evidence put forward by other witnesses were found to be contradictory to each other.

The accused had admitted the issuance of cheque. But there is no suggestion to PW1 that the particulars of the cheque was filled up by him or by somebody else at his behest. Further there is nothing to show that the accused had sought return of the cheque after discharging the debt as alleged by him. It was the above facts and circumstances that persuaded the courts below to come to the conclusion that the offence had been made out. Findings are entered on appreciation of the evidence in the case and are not shown to be either perverse or unwarranted by the materials on record. No interference in the findings of fault is called for under the revisional jurisdiction of this Court.

However imposition of substantive sentence seems to be on the high side and is not warranted by the facts and circumstances of the case. Since the petitioner has expressed his readiness and willingness to pay the amount, it is felt that a short time can be granted to the revision petitioner to pay the amount.

In the result, while confirming the conviction of the accused for the offence punishable u/s 138 of the Negotiable Instruments Act, the sentence imposed by the courts below is set aside and he is sentenced to undergo simple imprisonment till the rising of the court and to pay an amount of Rs. 1,35,000/- as compensation to the complainant within four weeks from today, failing which he shall suffer simple imprisonment for a period of four months.