Sudheer T.H. vs Babu Antony

K. Ramakrishnan, J.

Accused in S.T. No. 189/13 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 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 the revision petitioner borrowed a sum of Rs. 1,50,000/-and in discharge of that liability, he had issued Ext.P1 cheque dated 20.07.2009 drawn on Muppathadam Service Cooperative Bank, Muppathadam branch in favour of the complainant. The cheque when presented was dishonoured for the reason ''funds insufficient'' vide Ext.P2 dishonour memo dated 20.07.2009 and that was intimated to the complainant by his banker vide Ext.P3 intimation letter dated 28.07.2009. The complainant issued Ext.P4 notice dated 17.08.2009 vide Ext.P5 postal receipt and it was returned with endorsement ''unclaimed'' evidenced by Ext.P6 returned notice. The accused had not paid the amount. So, he had committed the offence punishable 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 himself was examined as PW1 and Exts.P1 to P6 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. He had further stated that there was no transaction between the complainant and himself and in fact, one Nishad under whom he was working obtained a Chitty from Erutty Chitty funds and his cheque was obtained for the purpose of producing the same as security for withdrawing that amount and he had also obtained the cheque from his co-employee Smitha and mother in law of the employer for that purpose. Thereafter, the concern was closed and he left the place and somehow, the complainant obtained the cheque and filed a false complaint against him. In order to prove his case, he himself was examined as DW1.

After considering the evidence on record, the court below disbelieved the case of the revision petitioner and believed the case of the complainant and convicted the revision petitioner for the offence under Section 138 of the Act and sentenced him to undergo simple imprisonment for three months and also to pay a fine of Rs. 1,50,000/- in default to undergo simple imprisonment for six months. It is further ordered that if the fine is realized, the same was directed to 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. 548/13 before the Sessions Court, Ernakulam which was made over to Additional Sessions Court, North Paravur for disposal and the learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction and sentence of fine, but, reduced the substantive sentence to imprisonment till rising of court. 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 contentions 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 the Public Prosecutor appearing for the second respondent dispensing with notice to the first respondent.

The Counsel for the revision petitioner submitted that the court below had not properly appreciated the evidence given by DW1 - the revision petitioner and he had rebutted the presumption by examining himself and as such, the courts below were not justified in convicting the appellant for the offence under Section 138 of the Act and he is entitled to get acquittal.

On the other hand, the concurrent findings of the court below on this aspect has been supported by the learned Public Prosecutor.

The case of the complainant in the complaint was that revision petitioner borrowed a sum of Rs. 1,50,000/- and in discharge of that liability, he had issued Ext.P1 cheque. The case of the revision petitioner was one of total denial. His case was that there was no transaction between him and the complainant and the cheque given to one Nishad for the purpose of producing the same as security for the chitty obtained from one chitty company by name Erutty Chitty Funds and that was somehow obtained and the present complaint was filed. In order to prove the case of the complainant, the complainant himself was examined as PW1 and he deposed in support of his case in the complaint and he had denied the suggestion given by the revision petitioner that there was no transaction between them, he obtained the cheque somehow and filed a false complaint. He had also denied the suggestion that he had no acquaintance with the complainant. He had stated that the revision petitioner was conducting a Beauty Parlor in Aluva and he used to go there and thereby, he had acquaintance with him. On account of that acquaintance, he had advanced the amount to the revision petitioner. The fact that he was conducting a beauty parlor and the complainant used to visit the beauty parlor were not challenged in cross examination. So, that shows his acquaintance with the revision petitioner. So, the case of the revision petitioner that, he had no prior acquaintance with the complainant cannot be believed.

Further, DW1 has not taken any action to get back the cheque given to Nishad even though he had left the employment under him as claimed by him. He had not taken any action against Nishad for misusing the cheque through the complainant as well. So, under the circumstances, the courts below were perfectly justified in disbelieving with the case of the revision petitioner and believing the case of the complainant and coming to the conclusion that the revision petitioner had borrowed the amount and issued Ext.P1 cheque in discharge of that liability.

As regard the service of notice is concerned, the complainant had issued the notice in the correct address in which normally it will be served on the revision petitioner by registered post. The revision petitioner had no case that he will not receive the notice in that address. Notice was returned with endorsement ''unclaimed''. Once the complainant had proved that the notice was issued in the correct address and it was returned with endorsement ''unclaimed'', then, the presumption under Section 27 of the General Clauses Act will apply and it will be presumed that there is deemed service and the addressee had knowledge about the contents of the notice and that will be deemed to be proper service contemplated under Section 138(b) of the Act. It was so held by the Supreme Court in the decision reported in C.C. Alavi Haji Vs. Palapetty Muhammed and Another, . So, the court below was perfectly justified in coming to the conclusion that there was proper service of the notice as contemplated under Section 138 of the Act and rightly convicted the revision petitioner for the offence under Section 138 of the Act which was rightly confirmed by the appellate court as well. There is no illegality committed by the court below which warrants this court''s interference to upset the same.

As regards the sentence is concerned, though the trial court has imposed the substantive sentence of three months imprisonment apart from fine with default sentence with direction to pay a fine amount to the complainant as compensation, the appellate court has reduced the substantive sentence to imprisonment till rising of court. So, maximum leniency has been shown by the appellate court in imposing the sentence as well and I don''t find any reason to interfere with the sentence imposed 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 2009 though it was re numbered after transfer of the year 2013 and also considering 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.