T S FAIZAL RAHMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE accused in S.T.Case.No.1902/2009 on the file of the Judicial First Class Magistrate Court -III, Palakkad is the revision petitioner herein.

(2.) THE case was taken on file, on the basis of a private complaint filed by the complainant against the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act, (hereinafter called 'the Act'). The case of the complainant in the complaint was that, the revision petitioner had borrowed an amount of Rs.2,92,500/ - for the purpose of enabling the revision petitioner to get a loan from Palakkad Service Co -operative Bank, by depositing this amount in the scheme known as 'Swayam Vardini', and from that a loan was taken and the amount was paid to the revision petitioner, on the understanding that he will discharge the liability on or before 15.03.2007, but he had committed default in payment of the amount and an amount of Rs.5,60,000/ - was due for discharge the entire liability of the bank loan, and in discharge of that liability, he had issued Ext.P1 cheque which when presented was dishonoured for the reason 'funds insufficient' vide Ext.P2 Dishonour Memo. The complainant issued Ext.P3 Notice vide Ext.P4 Postal Receipt, and the same was received by the revision petitioner evidenced by Ext.P8 Postal Acknowledgment Card. He had not sent any reply. So he had committed the offence punishable under Section 138 of the Act, hence the complaint.

(3.) WHEN the revision petitioner appeared before the Court below, the particulars of offence were read over and explained to him, and he pleaded not guilty. In order to prove the case of the complainant, the complainant herself was examined as PW1 and PW2 and PW3 were also examined, and the Bank Manager was examined as PW4 and Exts.P1 to P9 were marked on her side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313(1)(b) of Code of Criminal Procedure, and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, he had not issued any cheque and there was no such transaction as claimed by the revision petitioner, and the amount was not due. He had not adduced any evidence in defence. 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 simple imprisonment for three months and also pay the fine amount of Rs.5,60,000, in default to undergo simple imprisonment for three months more. It is further ordered that if the fine amount is realised to same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Aggrieved by the same, he filed Criminal Appeal No.483/2012 before the Sessions Court, Palakkad, and it was made over to Additional Sessions Court Palakkad for disposal. The learned Additional Sessions Judge allowed the appeal in part, confirming the order of conviction but, modified the sentence by sentencing the revision petitioner to undergo imprisonment till rising of the Court, and also to pay a fine of Rs.5,61,000/ -, in default to undergo simple imprisonment for three months. It is further ordered that, if the fine amount is realised, an amount of Rs.5,60,000/ - be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Aggrieved by the same, the present revision has been filed by the revision petitioner accused before the Court below.