T.P. Vau vs Shaji Kumar K.K. and State of Kerala

M.C. Hari Rani, J.—This revision petition is filed by the accused challenging the concurrent finding of conviction and sentence imposed on him by the courts below for the offence u/s 138 of the Negotiable Instruments Act. The case of the complainant is as follows:

On 2/4/1998, the revision Petitioner/accused borrowed Rs. 35,000/- from the first Respondent/complainant with a promise to repay the same within two months. The complainant demanded repayment of that amount. Thereafter, on 8/5/1998, the accused issued a post dated cheque drawn in his account at Chelannur Kakkodi Service Co-Operative Bank for Rs. 35,000/- in discharge of the debt. That cheque dated 18/5/1998 was presented for encashment, which was returned for want of sufficient funds in the account of the accused. The complainant sent registered lawyer notice on 17/6/1998, which was accepted by the accused on 18/6/1998. No reply has been sent by the accused and the cheque amount was not paid. Accordingly, the complainant preferred the complaint before the trial court for the offence u/s 138 of the Negotiable Instruments Act. The trial court, after considering the evidence, adduced on the side of the complainant and after examination of the accused u/s 313 Code of Criminal Procedure and after considering the defenceversion the accused was found guilty of the offence under Section138 of the Negotiable Instruments Act. Accordingly, the accused was sentenced to undergo simple imprisonment for three months. The accused preferred appeal and the appellate court allowed the appeal in part. The Appellant was sentenced to imprisonment till rising of the court and directed to pay Rs. 40,000/- as compensation with default sentence to undergo simple imprisonment for two months. The said finding of guilty and conviction of the revision Petitioner/accused for the offence u/s 138 of the Negotiable Instruments Act has been challenged in this revision petition.

Heard the learned Counsel for the revision Petitioner and the learned Counsel for the first Respondent. Heard the learned Public Prosecutor also.

The learned Counsel for the revision Petitioner/accused argued that no chance has been given to the accused to adduce evidence and to prove his innocence. The defence as revealed from the answers given by the accused while questioned u/s 313 Cr.P.C. was that he borrowed an amount ofRs.5,000/-only from the complainant and given a blank signedcheque to the complainant which was misused. Learned Counselfor the revision Petitioner prayed to remand this case to the trial court and to give a chance to the accused to adduce evidence. This has been opposed by the learned Counsel for the complainant and submitted that sufficient chance was given to the defence to prove this case and it was not availed of by the accused. However both courts below after considering the evidence on record, found the concurrent finding of guilty and conviction of the accused.

The jurisdiction of revision is essentially the power and the duty of superintendence and correction. The crucial question to be considered is whether the findings of fact rendered by the courts below are so grossly erroneous or perverse as to warrantrevisional interference. Execution of Ext.P1 cheque dated18/5/1998 has not been disputed by the accused. According to the accused, he borrowed Rs. 5,000/- only for which a blank signed cheque was given by him to the complainant which was misused. The complaint has been filed by the complainant after complying with all the formalities which has not been disputed. The complainant has admittedly issued lawyer notice to the accused which was received by the accused on 18/6/1998. Even after receipt of that notice on 18/6/1998, no reply has been sent by the accused and not repaid the cheque amount. The accused appeared before the trial court on receipt of summons. The complainant was examined as PW1 on 27/10/2001 and he was not cross examined on that day as stated by the learned Magistrate in paragraph 7 of the judgment. Subsequently when the case was posted for 313 examination of the accused, he filed C.M.P. No. 3057/2002 u/s 311 Code of Criminal Procedure to recall PW1 for the purpose of cross examination. That petition was filed only on 17/6/2002 and it was dismissed by the trial court. According to the learned Counsel for the revision Petitioner, that petition was dismissed on 24/6/2002 as revealed from the docket sheet of the records maintained by the learned Counsel. That date has not been specified in the judgment pronounced by the learned Magistrate. Thereafter, the accused was examined u/s 313 Code of Criminal Procedure and no defence evidence either oral or documentary has been adduced. The accused has not challenged the order in C.M.P. No. 3057/2002. After considering the evidence on record, the learned Magistrate pronounced the judgment on 29/7/2002 thereby the accused was found guilty of the offence u/s 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for three months. The appellate court also considering the evidence on record and came to a conclusion that Ext.P1 cheque was issued by the accused in discharge of the legally recoverable debt due from him and that no attempt has been made by the accused to adduce evidence to rebut the presumption u/s 138 of the Negotible Instruments Act. This conclusion has been arrived at by the appellate court after considering the fact that the signature in Ext.P1 cheque and handing over of the same to the complainant and the demand made by the complainant to the accused to repay that amount by issuing the lawyer notice. The accused has not chosen to send the reply and no witness has been examined on his side. Considering these facts and evidence on record, I find no reason to interfere with the concurrent findings of the courts below and to interfere with the sentence also. Sufficient leniency is already shown to the accused and he was sentenced to imprisonment till rising of the court and directed to pay Rs. 40,000/- as compensation to the first Respondent and in default to undergo simple imprisonment for two months. The same is confirmed.

In the result, this Crl. revision petition is dismissed. The revision Petitioner is granted two months time to pay the compensation amount to avoid the default sentence. If the payment is made by the revision Petitioner on or before 18/4/2011, the same can be withdrawn by the complainant on filing proper application. The amount, if any, which is in deposit before the trial court by the revision Petitioner can be given credit to towards the total compensation. The revision Petitioner shall appear and his sureties shall produce him before the learned Magistrate on 19/4/2011 for execution of the sentence.