Sunny Marks vs John Joy P. and another

V.K. Mohanan, J.—The revision petitioner who is the accused in a prosecution for the offence under Sec. 138 of the Negotiable Instrument Act, challenges the concurrent finding of the trial court as well as the lower appellate court and the conviction and sentence imposed against him.

The case of the complainant is that the accused borrowed a sum of Rs. 3,47,000/- on various occasions and on demand for return of the said amount, the accused issued a cheque which when presented for encashment, returned as dishonoured for want of sufficient fund in the account of the accused. Consequently, a statutory notice was sent and though the revision petitioner received the same, no reply was given and no amount was paid. Thus, according to the complainant, the revision petitioner/accused committed an offence punishable under Sec. 138 of the N.I. Act. With, the above allegation, the complainant approached the Judicial First Class Magistrate-III, Kochi by filing a complaint based upon which a cognizance was taken under Sec. 138 of the N.I. Act and instituted S.T. No. 105/2005. From the side of the complainant, he himself gave evidence as PW1 and produced Exts. P1 to P6 documents. On the side of the defence, Ext.D1 was marked. Based upon the available evidence and materials, the trial court has found that the complainant has succeeded in proving the case. Accordingly, the revision petitioner is convicted under Sec. 138 of the N.I. Act and sentenced to undergo imprisonment till the rising of the court and to pay a sum of Rs. 3,50,000/- as fine and the default sentence is fixed as simple imprisonment for one month. It is also ordered that if the fine amount is realized, the same shall be given to the complainant under Sec. 357(1)(b) of Cr.P.C. as compensation. Challenging the above order of conviction and sentence, the revision petitioner has preferred an appeal. But by judgment dated 10.3.2010 in Crl. A. No. 437/2009, the court of Additional Sessions Judge (Adhoc-1), Ernakulam dismissed the appeal confirming the conviction and sentence imposed against the revision petitioner and directed the revision petitioner to appear before the trial court on 31.5.2010 to receive the sentence. It is the above conviction and sentence challenged in this revision petition.

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

On consideration of the arguments advanced by the learned counsel for the revision petitioner and on analysis and perusal of the judgments of the courts below, it appears that the case of the petitioner is that the accused and the complainant were engaged in partnership business and the cheque in question is one of the cheques pertaining to the accused/revision petitioner and reached in the hands of the complainant during the said partnership business. No evidence, either oral or documentary produced from the side of the defence to substantiate the said plea. Ext.Dl is the only document marked from the side of the defence that also when PW1 was examined. The trial court as well as the lower appellate court has considered the contentions raised by the accused on the basis of the materials and evidence available on record. When complainant was examined he had deposed that Ext. D1 was given as a security, when the accused promised that the complainant would be admitted as a partner in the firm of accused namely; Freeze India Corporation, Ernakulam. But he had further deposed that though the accused agreed to make him a partner the same was not materialized. On the basis of the above facts and materials, the trial court has came into a conclusion that if actually there was a partnership firm, there must have document to that effect but no such document was produced. In the light of the explanation given by PW1, I find no illegality or irregularity in holding that the accused failed to establish his case that there was a partnership business run by the complainant and the accused. Hence the question to be considered is how far the revision petitioner/accused succeeded in explaining as to how Ext. P1 cheque, a cheque pertaining to the account of the accused and signed by him, reached in the hands of the complainant. The trial court as well as the lower appellate court has held that no evidence is adduced by the revision petitioner to substantiate his plea. The learned counsel for the revision petitioner submitted that the matter may be remanded to the trial court, by giving an opportunity to the revision petitioner to adduce evidence. I am unable to sustain such a submission. It is also the case of the counsel that during the trial of the case, the petitioner/accused moved an application under Sec. 315 Cr.P.C. and the same was allowed by the trial court. But he could not appear before the court. Thus it is clear that the trial court did not deny opportunity to the revision petitioner to adduce evidence. The cheque in question is dated 16.9.2004, it covers an amount of Rs. 3,47,000/-. When a formal notice was sent to the revision petitioner, no reply was given. After the filing of the complaint also, the revision petitioner has got ample opportunity to cross examine the complainant, by which he could have attend to make out his case. He had also got opportunity to adduce evidence to substantiate his defence. Besides the above, the trial court has also granted an opportunity to the revision petitioner to give evidence upon the petition filed by the revision petitioner. That opportunity was also not availed of. In the absence of evidence and probable explanation as to how Ext. P1 cheque reached in the hands of the complainant and on the failure of the accused to produce the Partnership Deed, if any, if, I am not inclined to allow the request of the counsel for the revision petitioner for remanding him.

Based upon materials and evidence referred to by the court below in its judgment, came into the conclusion that the complainant has established the case. The revision petitioner is miserably failed to rebut the presumption, available in favour of complaint. Therefore, I find no reason to interfere with the concurrent findings of the court below and there is no merit in the revision petition.

The learned counsel for the revision petitioner submitted that some time may be granted to make the payment.

Having regard to the facts and circumstances of the case, I find that the said request of the revision petitioner can be considered but subject to other relevant facts of the case. As indicated earlier, the cheque in question is dated 16.9.2004 and as per the records substantial amount to the tune of Rs. 3.47,000/-, which belonging to the complaint, is with the revision petitioner for the last 6 years. In the decision in Damodar S. Prabhu v. Sayed Babulal H. represented in 2010 (2) R.C.R. 851 : 2010 (3) R.A.J. 180 : J.T. 2010 (4) SC 457 the honourable Apex Court has held that in the matter of dishonour of cheque, the remedial aspect of the case has to be given priority than the punitive aspect. Thus it can be seen that the courts below, on leniency, imposed only a sentence of imprisonment till rising of the court and he was directed to pay a fine of Rs. 3.50,000/-. In the light of the above mentioned Supreme Court decision. I am of the view that the fine amount fixed by the court below can be enhanced and the default sentence also can be enhanced so as to compensate the complainant adequately.

In the result, this Crl.R.P. is disposed of confirming the conviction imposed against the revision petitioner by the trial court as well as the lower appellate court. Accordingly the sentence of imprisonment till rising of the court is maintained and the revision petitioner is also sentenced to pay a fine of Rs. 3,65,000/- and in default, he is directed to undergo simple imprisonment for a period of 6 months and if the fine amount is realized, a sum of Rs. 3.60,000/- 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 6.9.2010. In case any failure on the part of the revision petitioner to appear before the trial court as directed above, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence.