T.S. Joseph vs Aiju George Mathew

K. Ramakrishnan, J.—Accused in S.T. No. 2935/09 on the file of Judicial First Class Magistrate Court, No-II (Mobile) Kottayam is the revision petitioner herein.

The case was taken on file on the basis of a private complaint filed by the first respondent as complainant under Section 138 of the Negotiable Instruments Act (hereinafter called ''the Act'')

The case of the complainant in the complaint was that accused borrowed a sum of Rs. 4,00,000/- and in discharge of that liability, he had issued Ext. P3 cheque dated 11.01.2008 which when presented was dishonoured for the reason ''funds insufficient'' vide Ext. P4 dishonour memo dated 10.07.2008 which was intimated to the complainant by his banker vide Ext. P5 intimation letter. The complainant issued Ext. P6 notice dated 06.08.2008 on 07.08.2008 vide Ext. P7 postal receipt and the same was received by the accused evidenced by Ext. P8 acknowledgment card. 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 accused 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 two witnesses were examined as PWs 2 and 3 and Exts. P1 to P12 were marked on his side. After closure of the complainant''s evidence, the accused was questioned under Section 313 of Code of Criminal Procedure and he had denied the incriminating circumstances brought against him in the complainant''s evidence. He had further stated that he had not borrowed any amount and in fact, he was a real estate broker and he had arranged sale of the property and the amount paid is the commission payable and the cheque was obtained as a security. But, later it was misused and the present complaint was filed. In order to prove his case, the accused himself was examined as DW1. 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 imprisonment till rising of court and also to pay the cheque amount of Rs. 4,00,000/- as compensation in default to undergo simple imprisonment for six months under Section 357(3) of Code of Criminal Procedure. Dissatisfied with the same, the revision petitioner filed Crl. Appeal No. 447/10 before the Sessions Court, Kottayam which was made over to Additional Sessions Court, Special Judge, Kottayam for disposal and the learned Additional Sessions Judge by the impugned judgment, dismissed the appeal. Aggrieved by the same, the present revision has been filed by the revision petitioner who is the accused in the court below.

Since the first respondent also appeared, this court felt that the matter can be admitted and can be disposed on merit. So, the revision petition is admitted and heard and disposed of today itself.

The Counsel for the revision petitioner submitted that the evidence of DW1 and also some admission made by PWs 1 to 3 will go to show that the case of the accused is more probable than the case of the complainant and he had rebutted the presumption under Section 139 of the Act and the courts below were not justified in convicting the appellant for the offence under Section 138 of the Act.

On the other hand, the Counsel for the first respondent argued that the evidence adduced on the side of the complainant both oral and documentary will go to show that the case of the accused is not probable or believable and the courts below, on appreciation of evidence on facts, concurrently found that the accused had committed the offence punishable under Section 138 of the Act and the finding does not call for any interference.

Heard the Public Prosecutor also.

The case of the complainant in the complaint was that accused borrowed a sum of Rs. 4,00,000/- and in discharge of that liability, he had issued Ext. P3 cheque. The case of the accused was that, he was a real estate broker in the transaction of sale of the property of PWs 1 and 3 and the amount was paid as commission and they have obtained a cheque as security, later, the same was misused and the complaint was filed. In order to prove the case of the complainant, PWs 1 to 3 were examined. Their evidence will go to show that the accused is a confirming person for a party who were engaged in purchase of properties and the property jointly held by the complainant and PW3 were agreed to be sold and an amount of Rs. 25,00,000/- was obtained as advance. When he came to know about the same, the accused wanted some amount as loan and accordingly, Rs. 4,00,000/- was given and it is not the commission payable. Further, in order to prove this fact, Ext. P12 agreement executed by the accused in the presence of PW2 and one Chacko was produced and that was proved through PW2. Further, it was admitted that the other witness Chacko to Ext. P12 is none other than an employee of the accused. It is seen from Ext. P12 that the amount was borrowed and the cheque was issued. The accused had no case that a blank signed cheque given was misused also. Further, it was admitted by DW1 that he used to get commission only after the deal is over. But, in this case, he had admitted that the transaction could not be completed. So, the case of the accused was that the amount was given as commission cannot be believed. Further, if it was given as commission, then, there is no necessity to obtain Ext. P3 cheque as claimed by him as well. Further, he did not send any reply to the notice issued as well. So, under the circumstances, courts below were perfectly justified in coming to he conclusion that the case of the accused is not believable and the complainant had proved the borrowal of the amount and issuance of Ext. P3 cheque by the accused in discharge of that liability and it was dishonoured for the reason ''funds insufficient'' and in spite of notice issued, he did not pay the amount and thereby, he 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 no infirmity or illegality has been committed by the courts below in arriving at such conclusion.

As regards the sentence is concerned, courts below have only imposed imprisonment till rising of court and directed the accused to pay the cheque amount as compensation to the complainant with default sentence under Section 357(3) of Code of Criminal Procedure. So, maximum leniency has been shown by the court below in this regard. So, I don''t find any reason to interfere with the sentence imposed by the court below also in this aspect. While this revision was about to be disposed of, the Counsel for the revision petitioner sought for six months time for payment of the amount which was opposed by the Counsel for the respondent on the ground that the case is of the year 2008. So, considering the fact that the case is of the year 2008 and it is pending for the last six years, six months time sought for by the Counsel for the revision petitioner appears to be excessive. But, considering the amount involved, this court feels that three months time can be granted to the revision petitioner to pay the amount. So, the revision petitioner is granted time till 24.01.2015. 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 before the court below and if the complainant appears and acknowledge the same before the court below, then, the court below is directed to treat the same as substantial compliance of payment of the amount and that can be recorded in the respective registers as held in Beena Vs. The Union of India (UOI) and The Central Bank of India, and Sivankutty Vs. John Thomas, .

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

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