@JUDGMENTTAG-ORDER
K.B.K. Vasuki, J.@mdashWhile Crl. R.C. 1334 of 2005 is filed by the complainant for enhancement of sentence awarded to the accused Crl. R.C. 37 of 2011 is filed by the accused against his conviction and sentence for the offence u/s 138 Negotiable Instruments Act in C.C. No. 7 of 2005 as confirmed in Crl. A. No. 79 of 2005. The complaint proceeds as if, the accused borrowed a sum of Rs. 1,00,000/- and Rs. 1,50,000/- on 20.08.2001 and 25.08.2001 respectively from the complainant and on the same day, the accused issued two post dated cheques for each Rs. 50,000/- and one cheque for Rs. 1,50,000/- and all the three cheques were presented for collection on 01.03.2002 and the cheques were returned dishonoured for want of sufficient funds and on receipt of the debit memo from the Bank concerned, legal notice was issued to the accused, and the accused having admitted his liability sought for extension of time till 15.06.2002 and issued two new cheques for Rs. 1,50,000/- and Rs. 1,00,000/- dated 15.06.2002 and both the cheques were presented for collection on 08.08.2002 and the same were dishonoured for want of sufficient funds and the same compelled the complainant to issue fresh statutory notice and neither the same was replied nor the cheque amount was repaid thereby the accused committed the offence punishable u/s 138 Negotiable Instruments Act.
2. The complainant in order to prove his case examined himself and the Bank officials as PW 1 to PW 4 and produced the cheques in question, debit memo issued by the Bank concerned, copy of the statutory notice, postal receipt, postal acknowledgment, ledger extract, cheque return register, extract for the accounts maintained by the accused as well as the complainant as Ex. P1 to Ex. P21. The accused examined himself and his witnesses as DW 1 and DW 2 and no document was adduced on his side.
3. Both the Courts below, on the admission made by the accused about the issuance of the cheque, raised the presumption u/s 139 of the Negotiable Instruments Act in favour of the complainant and on the failure of the accused to adduce sufficient satisfactory rebuttal evidence to dislodge the legal presumption so raised in favour of the complainant and on the basis of other materials and admissions made by the accused regarding his liability and issuance of cheque, accepted the complainant case and convicted the accused for the offence u/s 138 Negotiable Instruments Act and sentenced him to undergo rigorous imprisonment for two months and to pay fine of Rs. 5,000/-. Aggrieved against the judgment of conviction and sentence and quantum of sentence imposed by Courts below, both the accused and the complainant have preferred the present two criminal revisions before this Court for the relief stated above.
4. Here is the case wherein, the learned counsel for the accused would seriously question the correctness of the order of conviction and sentence of the Courts below mainly on two grounds (i) the initial burden is on the complainant to prove the existence of legally enforceable liability and (ii) the accused has adduced sufficient evidence to disprove the complainants case regarding the existence of any legally enforceable liability. It is also contended before this Court that both the Courts below without duly appreciating the nature of the materials available herein and the nature of the defence raised on the side of the accused, on the basis of such materials, grossly erred in disbelieving the defence raised by the accused. It is also seriously argued that mere admission of the signature in the cheque will not automatically go to lead to the presumption regarding execution of the cheque for the amount mentioned thereon and the burden is always on the complainant to prove the existence of legally enforceable liability for the amount mentioned in the complaint and the issuance of the cheque for the amount mentioned.
5. The learned counsel for the petitioner/accused in support of the defence so raised has also cited the following authorities
1.
3.
6. Per contra, the learned counsel for the complainant would draw the attention of this Court to the admission of DW 1 through Ex. P6 letter regarding his liability and issuance of the cheque to the sum mentioned in the complaint and defended the correctness of the order of conviction. The learned counsel for the respondent would by relying upon the judgment of the Hon''ble Apex Court reported in (i)
7. Heard the rival submissions made on both sides and perused the records.
8. The learned counsel for the accused would vehemently argue before this Court against wherewithal and the capacity of the wife to lend any money, that too, huge sum of Rs. 2,50,000/- to the accused and against his liability to pay any amount to the complainant. It is seriously contended that the amount borrowed is from the wife, but not from the husband and the amount is also subsequently discharged as such there is no existing legally enforceable liability to maintain any action u/s 138 of the Negotiable Instruments Act against the accused. Such defence raised on the side of the accused deserves no merits and consideration at the revisional stage, in view of the admission regarding loan transaction, the quantum of the loan amount and the person from whom the amount was borrowed and the issuance of the cheque for the amount so issued etc., in his Ex. P6 letter dated 08.04.2002.
9. The facts made available herein would reveal that Ex. P6 letter dated 08.04.2002 is the reply issued to the first statutory notice. Cheques are presented for collection on two occasions (i) on 01.03.2002 and (ii) on 18.08.2002.
10. On the first occasion two cheques for Rs. 50,000/- and one cheque for Rs. 1,50,000/- are issued and presented for collection and on the second occasion two different cheques for Rs. 1,50,000/- and Rs. 1,00,000/- are presented for collection. On both the occasions the cheques are returned for want of sufficient funds in the account as mentioned by the complainant in his statutory notice. Ex. P6 is the letter dated 08.04.2002 sent by the accused to the complainant by way of reply to the first statutory notice and no such reply is issued to the second statutory notice issued by the complainant. This Ex. P6 reply notice is admittedly inland letter addressed to the complainant and the recitals therein were in the own hand writing of the accused. The accused as DW 1 in the witness box categorically admitted so in the course of his cross examination. The reading of the recitals in Ex. P6 letter would categorically admit the loan transaction, quantum of the loan transaction and issuance of the cheques. Thereafter, the accused sought for extension of time for payment of Rs. 2,50,000/- upto 15.06.2002. It further says that he is ready to issue two fresh cheques for Rs. 2,50,000/- and accordingly two fresh cheques were issued for Rs. 2,50,000/- and those two cheques were presented for collection on 18.08.2002, but returned dishonoured and the amount remained unpaid, even after the statutory notice and the same gave rise to fresh cause of action for invoking Section 138 of the Negotiable Instruments Act.
11. Though it is sought to be argued before this Court that Ex. P6 letter was addressed to the complainant under different circumstances as reiterated by DW 1 in the course of his cross examination and the denial of execution of pro-notes ought to have been appreciated in the light of suggestion so made and both the courts below ought not to have placed serious reliance on Ex. P6 letter, this Court is not inclined to accept such contention raised on the side of the accused for the simple reason that no such defence was raised by way of any reply to the statutory notice issued on the second occasion. In that event, the only document to be relied on is Ex. P6 reply, which categorically supported and substantiated the complainant''s regarding the existence of legally enforceable liability and the quantum of the liability and issuance of cheques in question etc.
12. As a matter of fact, three judges larger bench of Hon''ble Supreme Court in the decision reported in Rangappa v. Sri Mohan (supra) which is relied on the side of the accused would only support the argument advanced on the side of the complainant that the presumption mandated by Section 139 of the Act does indeed include the presumption about existence of a legally enforceable debt or liability.
13. The Hon''ble Supreme Court in the same judgment after referring to the views expressed by the Supreme Court on earlier occasion in the decision reported in Krishna Janardhan Bhat v. Dattatraya G. Hedge (supra) as if the presumption u/s 139 is not in respect of existence of legally enforceable debt held the same to be incorrect. The larger bench of the Hon''ble Supreme Court observed therein that the accused, having failed to issue any statutory notice, is disentitled to raise any defence and further observed on identical circumstances that on the admission of the signature in cheque statutory presumption comes into play.
14. As rightly pointed out by the learned counsel for the complainant, the accused not only failed to adduce sufficient evidence to rebut such presumption, but also categorically admitted the complainant''s case. The admission made by DW 1 in his Ex. P6 letter would shatter the entire defence raised on the side of the accused. In my considered view, both the Courts below on the basis of the available materials found, the complainant''s case to be acceptable and rightly found the accused guilty of the offence u/s 138 of the Negotiable Instruments Act. This revisional court does not find any serious irregularity or illegality or any error or flaw in the judgment of conviction and sentence of the Courts below warranting any interference. In view of the same, the judgments of the Hon''ble Supreme Court and the Kerala High Court cited on the side of the accused are not applicable to the facts of the present case.
15. Regarding the quantum of sentence, the learned counsel for the complainant would seriously argue that the sentence awarded in such case should be more adequate and proportionate to the offence proved against the accused. The attention of this Court is drawn to the observation of the Supreme Court in the cases cited on the side of the complainant regarding sentencing policy in respect of case falling u/s 138 of the Negotiable Instruments Act. In the decision reported in Suganthi Suresh Kumar v. Jagdeeshan (supra) the complaint was filed against the accused for the offence u/s 138 Negotiable Instruments Act, there were two complaints arising out of two sets of cheques which were dishonoured by the drawee bank. The trial Magistrate after holding the respondent guilty of the offence convicted him of the aforesaid offence but sentenced him only to undergo imprisonment till rising of the court and pay a fine of Rs. 5,000/- in both cases. Aggrieved against the same, the accused preferred two revisions before the High Court and the High Court dismissed the revisions. On appeal to the Supreme Court, the Supreme Court duly appreciated the object and purpose of Section 357(3) of the code and the need for making liberal use and referred to the earlier decision of the Supreme Court in
4. In the said decision this Court reminded all concerned that it is well to remember the emphasis laid on the need for making liberal use of Section 357(3) of the Code. This was observed by reference to a decision of this Court in Hari Singh v. Sukhbir Singh (supra). In the said decision this Court held as follows:
The quantum of compensation may be determined by taking into account the nature of crime, the justness of the claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The court may enforce the order by imposing sentence in default.
(emphasis supplied)
16. The Hon''ble Apex court, in para. 10 of the decision reported in Suganthi Suresh Kumar v. Jagdeeshan (supra) commented on the impropriety of the High Court of Kerala in making one observation in
17. The Hon''ble Supreme Court in paras. 11, 13 and 14 of the same judgment, discussed the facts of the case and ultimately held that the trial court shall hear both sides once again in the matter of sentence and pass a sentence for the offence u/s 138 of the Act, wherein, the cheque amount remained unpaid, should be of such nature as to give proper effect to the object of the legislation. It is further observed therein that the accused is entitled to make a plea for mitigation of sentence, in the event of his succeeding in paying the amount covered by the cheques.
18. In the other case reported in R. Vijayan v. Baby and Another (supra) it is observed by the Supreme Court that all the Courts shall maintain uniformity and consistency in the matter of awarding compensation not only in order to enhance the credibility of the cheque as a negotiable instrument but also the credibility of Courts of Justice. Applying the views of the Hon''ble Supreme Court to the facts of the present case, this Court is inclined to direct the accused to pay twice the cheque amount and the same shall be paid by way of compensation to the complainant.
19. In the result, the sentence awarded by the courts below stand enhanced by way of payment of compensation of twice the cheque amount by the accused to the complainant and the Crl. R.C. No. 1334 of 2005 filed by the complainant is ordered. In the result, the Crl. R.C. No. 37 of 2011 filed by the accused stands dismissed.
