AI Structured Summary
Not yet generated for this judgment
Judgment
K. Ramakrishnan, J.—Accused in S.T. No. 4587/10 on the file of the Judicial First Class Magistrate Court, No-I, Thiruvananthapuram is the revision petitioner herein.
The case was taken on file on the basis of a private complaint filed by the first respondent - society against the revision petitioner alleging offences under Section 138 of the Negotiable Instruments Act (hereinafter called ''the Act'').
The case of the complainant in the complaint was that accused availed a loan from the society and in discharge of the amount due namely, Rs. 70,016/-, the accused issued Ext.P2 cheque dated 29.09.10 which when presented was dishonoured for the reason ''funds insufficient'' vide Ext.P3 dishonour memo dated 05.10.10 and that was intimated to the complainant by their banker vide Ext.P4 remittance memo dated 07.10.2010. The complainant issued Ext.P5 notice dated 25.10.2010 on the same day evidenced by Ext.P6 postal receipt and it was returned with endorsement ''unclaimed evidenced by Ext.P7 returned notice. Ext.P8 is the loan account maintained in the society in respect of the accused. 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 authorized person of the complainant -society has been examined as PW1 and Exts.P1 to P9 were marked on their side. After closure of the complainant''s evidence, the accused 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 and he had further stated that he had made remittance which were not properly credited by the society. In order to prove his case, DW1 - the collection agent of the society was examined and Ext.D1 pass book was also marked.
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 pay a fine of Rs. 82,618/- in default to undergo simple imprisonment for four months. It is further ordered that if fine amount is realized, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. The revision petitioner filed Crl. Appeal No. 104/13 before the Sessions Court, Thiruvananthapuram against the order of conviction and sentence passed by the trial court which was made over to Additional Sessions Court, No-II, Thiruvananthapuram for disposal by the Sessions Judge and the learned Additional Sessions Judge by the impugned judgment confirmed the order of conviction and sentence of fine imposed by the court below, but, reduced the default sentence to two months from four months and granted time to pay the compensation by one month. Aggrieved by the same, the present revision has been filed by the revision petitioner-accused before the court below.
Considering the scope of enquiry in the revision, 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 courts below did not properly appreciate the evidence of DW1 and the amount shown in the cheque is not really due from the revision petitioner. Further, the court below was not justified in imposing fine more than the cheque amount, are the contentions raised.
The learned Public Prosecutor supported the concurrent findings of the court below.
The case of the complainant in the complaint was that accused availed a loan and in discharge of the balance amount due, Ext.P2 cheque was issued. The accused had no case that he had not availed the loan or he had no case that the entire loan has been discharged. But, his case was that, the amount shown in the cheque is not the correct amount and the blank signed cheque given at the time of availing the loan was misused and the present complaint was filed. In order to prove the case of the complainant, the authorized person of the complainant - society was examined as PW1 and he denied the suggestion that blank signed cheque given at the time of availing loan was misused. Further, Ext.P8 loan account extract of the society will go to show that this amount was really due from the accused. The evidence of DW1 was that he had made some collection from the accused and the amounts of payment shown in Ext.D1 Pass book were really given credit in Ext.P8 account maintained by the society in this regard. So, the submission made by the Counsel for the revision petitioner that the amount was not really due and the cheque amount is not an amount which is really due from the accused cannot be accepted. Further, he had not sent any reply to Ext.P5 notice as well and it was returned unclaimed. Once notice has been issued in the correct address by registered post and if it was returned unclaimed, then, there is a presumption of deemed service of notice which is sufficient under Section 138 of the Act. So, under the circumstances, there is no merit in the submission made by the Counsel for the revision petitioner that the courts below were not justified in convicting the appellant for the offence under Section 138 of the Act. Courts below have appreciated all the evidence both oral and documentary and rightly come to the conclusion that the cheque was issued in discharge of a legally enforceable debt and the accused had not paid the amount in spite of sending notice and knowing about the sending of the notice and thereby, he had committed the offence punishable under Section 138 of the Act and the concurrent findings of the court below on this aspect do not call for any interference.
The other contention raised by the Counsel for the revision petitioner is that court below is not expected to impose fine more than cheque amount. That submission is without any basis because, power has been given to impose double the cheque amount as fine by virtue of Section 138 of the Act. Further, the apex court has observed that in appropriate cases even interest can be calculated on the cheque amount and that can be added to the fine to be imposed to fix the fine payable or compensation payable as the case may be, but, it should not exceed double the cheque amount. So, considering these aspects, the amount of fine imposed by the court below namely, Rs. 82,618/- cannot be said to be excessive or harsh. So, I don''t find any reason to interfere with the fine imposed also as maximum leniency has been shown by the court below in imposing the sentence. So, under the circumstances, the revision lacks bona fides. At the time, when this court was about to dispose of the revision, the Counsel for the revision petitioner sought four months time for depositing the amount. Considering the amount involved, this court feels three months time can be granted for deposit of the amount. So, the revision petitioner is given time till 27.01.2015 to remit the fine or pay the amount directly to the bank and if he pays the amount directly and produces the receipt and this was acknowledged by the bank before the court below, then, lower court is directed to treat this as substantial compliance of payment of fine and record the same as provided in Beena Vs. The Union of India (UOI) and The Central Bank of India, and Sivankutty Vs. John Thomas, . Till then, the court below is directed to keep the execution of sentence in abeyance.
With the above direction and observation, the revision petition is dismissed.
Office is directed to communicate this order to the concerned court immediately.