Johnson Thekkemury Joseph vs Maniamkot Advertising Company

K. Ramakrishnan, J.—Accused in S.T. Nos. 1461/2010 and 1466/2010, both on the files of Judicial First Class Magistrate Court-I, Kolenchery, is the revision petitioner herein. Both these cases were taken on file on the basis of two separate private complaints filed by the complainant against the revision petitioner alleging offence under section 138 of Negotiable Instruments Act.

The case of the complainant in the complaint was that the complainant is a partnership firm engaged in the business of media advertisement, designing, print consultation, public relation consultation etc and the wife of the revision petitioner approached the complainant and introduced herself as the proprietress of M/s. ATIT, a concern engaged in educational consultancy and entrusted to make an advertisement through the media conducted by the complainant and it was also informed that the revision petitioner was managing the business of the said concern and assisting his wife. An amount of Rs. 3,70,963/- was due in the transaction and it was settled for an amount of Rs. 2,65,117/- and the revision petitioner had undertaken to pay that amount and issued three post dated cheques for Rs. 1,07,063/- dated 3.9.2009 (Ext. P2), Rs. 42,204/- dated 9.10.2009 (Ext. P7) and Rs. 1,15,850/- dated 12.09.2009 (Ext. P12) in discharge of that liability. These cheques, when presented, were dishonoured for the reason ''funds insufficient'', as evidenced by Exts. P3, P8 and P13 dishonour memos and the complainant issued Exts. P4, P9 and P14 notices vide Exts. P5, P10 and P15 postal receipts and they were received by the revision petitioner, evidenced by Exts. P6, P11 and P16 postal acknowledgments. He had not paid the amount. So he had committed the offence punishable under section 138 of Negotiable Instruments Act. So, the complainant filed three complaints which were taken as S.T. Nos. 1461/2010, 1465/2010 and 1466/2010 on the files of Judicial First Class Magistrate Court-I, Kolenchery.

When the revision petitioner appeared before the court below, the particulars were read over and explained to him and he pleaded not guilty. On the basis of the application filed as Crl.M.P. 2505/2011 by the complainant, all these cases were tried jointly and evidence was recorded in S.T. 1461/2010. The complainant himself was examined as PW1 and Exts. P1 to P16 were marked on his side. After closure of the complainant''s evidence, the revision petitioner 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. He has further stated that all these cheques were issued covering the amounts mentioned in each cheque and there is no independent cheque or independent liability as mentioned in the complaint. Though he had paid the amount, he had not returned the cheques. Misusing the cheque the complaint was filed. No evidence was adduced on his side in defence.

After considering the evidence on record the court below found the revision petitioner guilty under section 138 of Negotiable Instruments Act in all these cases and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay a fine of Rs. 1,07,063/-, in default to undergo simple imprisonment for one month and further directed to pay the amount, if collected, to the complainant as compensation under section 357(1)(b) of Code of Criminal Procedure in S.T. 1461/2010 and further sentenced him to undergo imprisonment till the rising of the court and also to pay a fine of Rs. 42,204/-, in default to undergo simple imprisonment for one month and further directed to pay the fine amount, if collected, to the complainant as compensation under section 357(1)(b) of Code of Criminal Procedure in S.T. 1465/2010 and further sentenced him to undergo simple imprisonment for three months and also to pay a fine of Rs. 1,15,850/-, in default to undergo simple imprisonment for one month and further directed to pay the fine amount, if collected, to the complainant as compensation under section 357(1)(b) of Code of Criminal Procedure in S.T.1466/2010.

It appears that the amount covered in S.T. 1465/2010 was settled. He filed Criminal Appeal Nos. 742/2012 and 744/2012 against the order of conviction and sentence in S.T. Nos. 1461/2010 and 1466/2010 before the Sessions Court, Ernakulam which were made over to Additional Sessions Court, Muvattupuzha for disposal. The learned Additional Sessions Judge allowed the appeals in part, confirmed the order of conviction and sentence of fine and direction to pay the fine as compensation to the complainant but, reduced the substantive sentence in each case to imprisonment till rising of Court. Aggrieved by the same the present revisions have been filed by the revision petitioner/accused in the respective cases.

Considering the scope of enquiry and nature of the contentions raised, this Court felt that the revisions can be disposed of at the admission stage itself, after hearing the counsel for the revision petitioner and the Public Prosecutor appearing for the 2nd respondent dispensing with notice to the 1st respondent in both the cases.

The counsel for the revision petitioner submitted that the courts below have not properly appreciated the submissions made and the defence taken by the revision petitioner and he had rebutted the presumption and the conviction entered is not proper. He prayed for allowing the revisions.

The learned Public Prosecutor supported the concurrent findings of the courts below on this aspect.

As regards the conviction is concerned, the case of the accused/revision petitioner was that the wife of the revision petitioner had made some orders of advertisement through the complainant concern, and for the amounts due, undertaking the liability of his wife, the revision petitioner had issued the disputed cheques. The case of the revision petitioner was one of discharge but he had not adduced any evidence to prove the discharge as pleaded by him. Further he did not send any reply to the notices issued by the complainant when the cheques were dishonoured. The evidence of PW1 has not been discredited by cross examination and so the courts below were perfectly justified in rejecting the contentions of the revision petitioner and accepting the case of the complainant, convicting the revision petitioner for the offence under section 138 of the Negotiable Instruments Act and the concurrent findings of the court below, on this aspect, do not call for any interference.

As regards the sentence is concerned, though the court below had imposed the cheque amounts in both these cases as fine with substantive sentence of three months of imprisonment, that was reduced to imprisonment till the rising of the Court by the appellate court. So maximum leniency has been shown by the appellate court while imposing the sentence. The sentence imposed also cannot be said to be excessive considering the circumstances of the case. So the sentence also do not call for any interference.

However, while this Court was about to dispose of the revisions, the counsel for the revision petitioner sought six months'' time for payment of the amount. Considering the amount involved, this court feels that time can be granted as prayed for. So the revision petitioner is granted time till 20.06.2015 to pay the amount in the above cases. Till then, execution of the sentence is directed to be kept in abeyance.

With the above direction and observation, the revision petitions are dismissed. Office is directed to communicate this order to the concerned court immediately.