Alexander Thomas, J.

1. The afore captioned Criminal Revision Petition has been instituted by the petitioner/accused for impugning the conviction and sentence imposed on him for the offence under Section 138 of the Negotiable Instruments Act as per the judgment dated 27/09/2012 of the Judicial First Class Magistrate Court-VIII, Thiruvananthapuram, in ST. 69/2010 as confirmed by the impugned appellate judgment dated 09/08/2016 of the Court of Additional Sessions Judge-IV, Thiruvananthapuram, in Crl. Appeal 490/2012. The Trial Court had convicted the petitioner for the above said offence and that sentenced him to undergo imprisonment till the rising of the Court and to pay fine of Rs. 2,00,000/- (Rupees Two lakhs only) (which is the amount covered by Ext. P-1 cheque bearing No. 090290 dated 23/01/2008) to the complainant (PW-1) under Section 357(3) of the Cr.P.C. and in default thereof, the accused was ordered to undergo simple imprisonment for a period of 2 years. The Appellate Sessions Court had dismissed the appeal confirming both the conviction as well as the above said sentence imposed by the Trial Court. Heard Sri. D. Kishore, learned counsel appearing for the revision petitioner/accused and Sri. Saigi Jacob Palatty, learned Public Prosecutor appearing for R-1, State of Kerala. In the nature of the orders proposed to be passed in this revision, it is ordered that notice to R-2 (complainant) will stand dispensed with.

2. The case of the complainant is that the complainant and the accused were known to each other and that the accused had requested him to borrow Rs. 2 lakhs as evident from Ext. P-7 (statement of accounts of the bank account of the complainant) an amount of Rs. 2 lakhs was transferred on 15/09/2007 from the complainant's account to the bank account of the accused. Later, on demanding repayment of the said borrowed amount, the accused had issued the impugned Ext. P-1 cheque No. 090290 dated 23/01/2008 drawn on the IDBI Bank, M.G. Road, Thiruvananthapuram, in favour of the complainant and on presentation the same was dishonoured and that on receipt of Ext. P-2 Bank dishonour memo, the complainant had send Ext. P-3 statutory notice dated 30/01/2008 calling upon the complainant to make the payment and after receipt of the said notice, accused had sent Ext. P-6 reply notice giving his version as to why he is not liable to pay the said amount, etc. This resulted in the institution of the above complaint. The complainant had tendered evidence as PW-1 and had also marked Exts. P-1 to P-7 documents from his side. The accused had adduced evidence to D.W. -1 (accused), D.W. -2 (Bank Manager of the accused) and D.W. -3 (said to be a common friend of the accused and the complainant) and the defence had also marked Exts. D-1 to D-3 documents.

3. The evidence given by the complainant was in tune with the averments of this complaint. That an amount of Rs. 2 lakhs was borrowed by the accused from the complainant which the complainant had transferred to the bank account of the accused as per Ext. P-7 on 15/09/2007. It is for this liability, that the accused had subsequently executed and issued Ext. P-3 cheque dated 30/01/2008. The accused has admitted that all the entries in Ext. P-1 cheque, except the date were, written by the accused. The basic defence set up by the accused both in Ext. P-6 reply notice as well as before the Trial Court was that one Mohanan was the common friend of the accused and the complainant. That Sri. Mohanan was running a firm called "Transtap" and that the complainant had advanced the above said amount to Sri. Mohanan as mediated by the accused. That Sri. Mohanan after suffering business loss had abandoned his business. Later Sri. Mohanan was prepared to pay the above amount to the complainant but the complainant informed the accused that if the amount is shown as credited to the account of the complainant then the complainant may have some problems from the income tax authorities. Therefore the complainant had requested the accused that the said amount of Rs. 2 lakhs may be deposited by Mohanan directly to the account of the accused and that the accused may give a cheque to the complainant so that he can withdraw the said amount and accordingly the said amount of Rs. 2 lakhs was deposited in the bank account of the accused on 15/09/2007 by none other than Sri. Mohanan and not by the complainant but that as per the understanding the accused was obliged to give the said amount by a cash cheque to the complainant. That pursuant to this agreement between the parties the accused had initially issued Ext. P-1 cheque for an amount of Rs. 2 lakhs and all the entries therein were admittedly written by the accused except the date. Further, it is projected that a few days thereafter the complainant again approached the accused informing that the complainant had lost the above said cheque initially given and that another cheque may be given so that he could withdraw the said amount. That believing the version of the complainant that the complainant had lost the first cheque (which is Ext. P-1) that the accused had given another cash cheque for Rs. 2 lakhs to the complainant and that the complainant had withdrawn the said amount of Rs. 2 lakhs using that cheque from the bank account of the accused as evident from the entry dated 18/09/2007 in Ext. D-2 statement of bank account of the accused. Therefore, as per this version projected by the defence all the entries in Ext. P-1 cheque were written by the accused except the date but that believing the version of the complainant that he had lost Ext. P-1 cheque, the accused had given another cash cheque to the complainant which the complainant had encashed on 18/09/2007. Therefore, the liability to pay the amount of Rs. 2 lakhs to the complainant is fully admitted by the accused, but his only the defence is that the said amount was actually paid to the complainant as early as on 18/09/2007 as evident from Ext. P-2. Further it is alleged by the defence that thereafter the complainant had fraudulently presented the Ext. P-1 cheque by writing the date therein as 21/08/2008 which lead to the instant criminal complaint under Section 138 of the Negotiable Instruments Act.

4. Both the Trial Court and the Appellate Court found that the said version projected by the defence is not credible for reasons more than one. Firstly, the basic version of the defence is that the amount of Rs. 2 lakhs was deposited in the accused's account on 15/09/2007 was by Sri. Mohanan and to prove this aspect, the best person to give evidence was none other than Sri. Mohanan. The accused had not taken any steps whatsoever to summon Sri. Mohanan as a witness and therefore the said version given by the accused was found by both the Courts below to be bereft of any evidentiary credence/Secondly, it is to be noted that the sheet anchor of the defence case is that the amount in question was actually received by the complainant as borne out by the entry dated 18/09/2007 seen in Ext. D-2 bank account of the accused. Both the Courts below found that even if Ext. D-2 is taken as it is, the same will show as to whom the said amount has been paid. Both the Courts below found that the defence should have summoned some relevant and vital documents from the bank of the accused to show as to whom the said payment of Rs. 2 lakhs was paid through the cheque covered by Ext. D-2. In the absence of any evidence adduced by on the defence, the Trial Court as well as the Appellate Court came to the considered conclusion that the said version given by the accused is not believable or credible.

5. Still further the defence had tried to advance the case by adducing evidence through D.W. -3, who was alleged to be a common friend of the accused and the complainant. The Trial Court found that D.W. -3 is a tutored witness and that he lacks total credibility in that regard. In the box D.W. -3 initially ventured to suggest that the transaction between the accused and the complainant took place as early as in the year 1989. Later the Trial Court noted that D.W. -3 looked into his palm where the number of the case was written as 2009 and he deposed that the transaction was in the year 2009. From the very conduct and demeanour of the D.W. -3 the Trial Court took a considered view that his version is bereft of any credibility and that he is a tutored witness and who wants to give evidence only to support the case of the accused. Whereas, on the other hand the Trial Court and the Appellate Court found that the version of the complainant is believable and credible. Though Ext. P-7 bank account statement was found to be without authentication under Section 65(B) Indian Evidence Act, both the Courts below found that the transaction as projected by the complainant appears to be genuine and credible. It is in the light of these aspects that both the Courts below came to the considered conclusion that the accused is liable to be convicted for the offence under Section 138 of the Negotiable Instruments Act.

6. On perusal of the impugned judgments as well as materials on record and after hearing the arguments of the learned counsel for the revision petitioner, this Court is of the considered view that the said view so taken by both the Courts below concurrently on these questions of facts are not in any manner grossly perverse or unreasonable. Moreover, this Court is also of the view that crucial and relevant evidentiary aspects have not been in any manner, shut out by both the Courts below. Accordingly, this Court is of the firm view that the concurrent findings regarding the conviction of the petitioner does not deserve any interference at the hands of the revisional Court. The Trial Court has sentenced the accused to undergo imprisonment till the rising of the Court and further to pay compensation of Rs. 2 lakhs to the complainant which if realised was directly be given to the complainant under Section 357(3) of the Cr.P.C. Further it has been stipulated that on default of payment of the said compensation of Rs. 2 lakhs the accused will have undergo simple imprisonment for 2 years. The sentence has also been fully confirmed by the Appellate Court.

7. Sri. D. Kishore, learned counsel for the revision petitioner/accused submits that the said default sentence imposed by both the Courts below that the accused should undergo simple imprisonment for the maximum period of simple imprisonment for 2 years on default to pay the compensation of Rs. 2 lakhs is clearly ultra vires under proviso (b) to Section 30(1) of the Cr.P.C. The learned Public Prosecutor was also asked to assist this Court on this issue. Both the learned counsel appearing for the revision petitioner/accused as well as the learned Public Prosecutor has pointed out before this Court that the maximum sentence that could be imposed on accused on conviction for the offence under Section 138 is one that could be extended upto 2 years simple imprisonment. Section 30 of the Cr.P.C. has also been brought to the notice of this Court which reads as follows:

"30. Sentence of imprisonment in default of fine.-- (1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law

Provided that the term--

(a) is not in excess of the powers of the Magistrate under Section 29;

(b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.

(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 29."

8. Accordingly it is submitted by the revision petitioner as well as by the prosecutor that since the maximum punishment that could have been imposed by the learned Magistrate for conviction for an offence under Section 138 of the Negotiable Instruments Act is one that to the extend upto two years, the default sentence could not have exceeded 1/4th of the said two years, which is 6 months. On consideration of the provisions contained under Section 138 of the Negotiable Instruments Act as well as under Section 30 of the Cr.P.C., this Court is of the view that the said submission made by the revision petitioner as well as by the prosecutor are correct. The Trial Court, Appellate Court and revisional Court, while considering the question of sentence under Section 138 of the Negotiable Instruments Act is also bound by the restriction imposed by Section 30 of the Cr.P.C., more particularly, the one imposed by Clause (b) of proviso (2) subsection (i) of Section 30 of the Cr.P.C. in that view of the matter this Court is of the considered opinion that the default sentence of 2 years imposed by the learned Magistrate and as affirmed by the Appellate Court is clearly illegal and ultra vires and the same will stand set aside. Taking into account the various aspects of the matter, this Court is of the view that the default sentence clause could be limited to 3 months.

9. Sri. D. Kishore, learned counsel appearing for the revision petitioner submits that in case, this Court is inclined to uphold the conviction as well as direction to pay compensation of Rs. 2,00,000/- (Rupees Two lakhs only) imposed on the petitioner, then this Court may grant atleast 8 to 10 months for making the said payment of the compensation of Rs. 2,00,000/- (Rupees Two lakhs only). On consideration of this plea this Court is of the view that sufficient time to make the payment will be given to the accused but the time by 8 to 10 months is too large and the same will be limited to a maximum period of 6 months.

Accordingly the following orders and directions are issued:

"(i) The impugned conviction imposed on the petitioner for the offence under Section 138 of the Negotiable Instruments Act in the instant case, as per the judgments of both the Courts below are confirmed.

(ii) The impugned sentence imposed on the petitioner that he should suffer imprisonment till the rising of the Court and that he should pay compensation of Rs. 2,00,000/- (Rupees Two lakhs only) to PW-1 under Section 357(3) of the Cr.P.C. and that the said amount, if paid, shall be disbursed to the complainant, etc., are also confirmed.

(iii) The sentence imposed by the Trial Court, as affirmed by the Appellate Court that on default of payment of the compensation amount of Rs. 2,00,000/- (Rupees Two lakhs only), the accused should undergo simple imprisonment for 2 years will stand set aside and the same will stand modified with the direction that on default on the part of the petitioner to pay the compensation amount of Rs. 2,00,000/- (Rupees Two lakhs only), then he should undergo simple imprisonment for a period of 3 months.

(iv) The petitioner is given time by 6 months from 15/02/2017, to pay the compensation amount of Rs. 2,00,000/- (Rupees Two lakhs only) to the complainant.

(v) The petitioner will appear before the Trial Court at 11 a.m. on 19/08/2017 to suffer the imprisonment till the rising of the Court and to satisfy the Trial Court about the payment of the compensation amount of Rs. 2,00,000/- (Rupees Two lakhs only) to the complainant. Needless to say, in default to pay the compensation amount of Rs. 2,00,000/- (Rupees Two lakhs only), the petitioner/accused shall suffer simple imprisonment for a further period of 3 months."

With these observations and directions the Crl. R.P. will stand finally disposed of.