V.M. Mahesh vs Sate of Kerala

K. Ramakrishnan, J.—The accused in ST.128/12 on the file of the Judicial First Class Magistrate Court-III, Kanjirappilly is the revision petitioner herein.

2.The case was taken on file on the basis of a private complaint filed by the second respondent/complainant against the revision petitioner alleging the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act).

The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs. Two lakhs on 1.5.2008 and he had paid Rs. 85,000/- including Rs. 35,000/- as interest, which he had agreed to pay and issued Ext. P1 cheque for the balance amount of Rs. 1,50,000/-, which when presented was dishonoured for the reason fund insufficient vide Ext. P2 dishonour memo and that was informed to the complainant by his banker vide Exts. P3 and P4 intimation letters. The complainant issued Ext. P5 notice to the revision petitioner intimating dishonour and demanded payment of the amount vide Ext. P6 postal receipt and the same was received by the revision petitioner evidenced by Ext. P7 postal acknowledgment. The accused had not paid the amount. So he had committed the offence punishable under Section 138 of Act. Hence the complaint.

When the revision petitioner appeared before the court below, 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 P7 were marked on his side. After closure of the complainant''s evidence, the revision petitioner was questioned under Section 313 of the Code and he denied all the incriminating circumstances brought against him in the complainant''s evidence. He had further stated that he had not borrowed any amount and issued any cheque in discharge of any liability and he borrowed only Rs. 60,000/- and issued a blank signed cheque as security. Later the amount was paid but the cheque was not returned and misusing the cheque, the present complaint has been filed. No evidence was adduced on his side in defence. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay cheque amount of Rs. 1,50,000/- with 9% interest from 16.8.2010 till realization, in default to undergo simple imprisonment for six months under Section 357(3) of the Code. Aggrieved by the same, the revision petitioner filed Crl.A. No. 252/2013 before the Sessions Court, Kottayam which was made over to the 1st Additional Sessions Court, Kottayam for disposal and the learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction but set aside the order of sentence imposed by confining the sentence to fine of Rs. 2 lakhs, in default to undergo simple imprisonment for three months and it is further ordered that the fine amount is realized, the same shall be paid to the complainant as compensation under Section 357(1)(b) of the Code and time was granted for payment of the same. 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 also the nature of the conditions raised, this Court felt that the revision can be disposed of at the admission stage itself after hearing the counsel for the petitioner and the learned Public Prosecutor appearing for the first respondent dispensing with notice to the second respondent.

The counsel for the revision petitioner submitted that the evidence of PW1 is not sufficient to prove the ingredients of Section 138 of the Act and execution of the cheque has not been proved properly and the conviction entered by the courts below under Section 138 of the Act is not sustainable and the sentence imposed is also high and excessive.

The learned Public Prosecutor submitted the concurrent findings of the court below on the question of conviction and also the sentence imposed as modified by the appellate court do not call for any interference.

The case of the complainant in the complaint was that the accused borrowed a sum of Rs. Two lakhs agreeing to pay the same with interest and after three months, he had paid Rs. 85,000/- which includes Rs. 35,000/- interest on the amount and issued Ext. P1 cheque for the balance amount of Rs. 1,50,000/-

The case of the accused was that he borrowed only Rs. 60,000/- and issued blank signed cheque as security and though he paid the amount, the cheque was not returned and misusing the same, the complaint has been 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. Though he was cross examined at length, nothing was brought out to discredit his evidence on this aspect. Further the revision petitioner had not sent any reply to Ext. P5 notice issued by the complainant when the cheque was dishonoured. The accused is not a layman and no evidence was adduced on the side of the accused to prove his case as well. Further it was also deposed by PW1 that earlier a promissory note was executed when he borrowed Rs. Two lakhs and when partial amount was paid, he had issued the cheque for the balance amount. This was aspect was not seriously challenged in the cross examination. So under the circumstances, the courts below were perfectly justified in relying on the evidence of PW1 and the presumption available under Sections 139 and 118 of the Act and relying on the dictums laid down in the decisions reported in P. Gopakumar Vs. B.Anilkumar and Another, , Rangappa Vs. Sri Mohan, and Johnson Scaria Vs. State of Kerala, and rightly convicted the revision petitioner for the offence punishable under Section 138 of the Act and the concurrent finding of the court on facts on this aspect do not call for any interference.

As regards the sentence is concerned, the trial court has sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay the cheque amount of Rs,1,50,000/- with 9% interest from 18.6.2010 till realisation as fine, in default to undergo simple imprisonment for six months. It is further ordered that if the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1) of the Code. The appellate court has set aside the substantive sentence of 3 months but confined the sentence to fine alone and quantified the amount of fine as Rs. Two lakhs considering the fact that the amount was due from 2010 onwards and directed to pay fine amount to the complainant as compensation.

In view of the decision reported in Somnath Sarkar Vs. Utpal Basu Mallick and Another, the appellate court was perfectly justified in quantifying the fine as Rs. Two lakhs and directing the fine to be paid to the complainant as compensation under Section 357(1)(b) of the Code. So I do not find any reason to interfere with the sentence imposed by the court below as modified by the appellate court as the appellate court has shown maximum leniency to avoid substantive sentence of imprisonment to the accused. So under the circumstances, I do not find any reason to interfere with the sentence imposed by the court below as modified by the appellate court as it appears to be just and proper.

While the case was about to be disposed, the counsel for the for the revision petitioner prayed for six months time for payment of the amount. Considering the amount involved, this Court feels that four months time can be granted for payment of the amount. So the revision petitioner is granted time till 4.4.2015 to pay the amount. Till then the execution of the sentence is directed to be kept in abeyance. If the compensation out of fine amount is paid directly to the complainant by the revision petitioner and produces the proof of payment before the trial court and acknowledged by the complainant by appearing before that court, then the lower court is directed to treat the same as substantial compliance of the directions of the trial court as confirmed by this Court and record the same in the respective fine register as provided in Beena Vs. Balakrishnan Nair, and Sivankutty Vs. John Thomas, .

With the above directions, this revision petition is dismissed.

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