IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 Crl.Rev.Pet.No. 2581 of 2009() ------------------------------ CRA.619/2007 of III ADDL.SESSIONS COURT, ERNAKULAM CC.41/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES), ERNAKULAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- M.S.KALESH, AGED 37 YEARS S/O. SUBRAMANYAN, MULLEPARAMBIL HOUSE, AYYAPPANKAVU. BY ADV. SRI.A.T.ANILKUMAR RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE -------------------------- 1. CIJUMON, AGED 37 YEARS, S/O. ANTONY, PATHAPPALLY HOUSE, SOUTH CHITTOOR.P.O. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, DISTRICT COURT, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2581 of 2009 -------------------------------------- Dated this the 10th day of August, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Petitioner faced trial in the court of learned Additional Chief Judicial Magistrate (Economic Offences), Ernakulam in C.C.No.41 of 2006 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case is that petitioner issued Ext.P1, cheque dated 15.5.2004 for discharge of a liability to the tune of Rs.1,50,000/- but that cheque was dishonoured for insufficiency of funds as proved by Ext. P2. Notice was issued to the petitioner intimating dishonour and demanding payment of the amount. According to respondent No.1 notice was returned unclaimed inspite of intimation given to the petitioner. Issue and return of notice are proved by Exts.P3 to P5. Respondent No.1 gave evidence as PW1 and testified to the transaction leading to execution of the cheque. According to the petitioner, he had shared the office room at M.G.Road, Ernakulam with respondent No.1 and on that occasion the latter stealthily collected the cheque leaf and misused it. Petitioner gave evidence as DW1. Courts below found in favour of due execution of the cheque. It is contended that the finding is not correct. The Crl.R.P.No.2581/2009 2 further contention is that there is no proper service of notice on petitioner. 3. So far as execution of the cheque is concerned, learned Additional Chief Judicial Magistrate observed that though when questioned under Section 313 of the Code of Criminal Procedure petitioner claimed that he shared office room with respondent No.1 and on that occasion respondent No.1 stealthily collected the cheque, petitioner when examined as DW1 did not have such a case. At any rate there is no evidence to show that respondent No.1 stealthily obtained the cheque as contended by the petitioner. It is admitted and proved that the cheque is signed by petitioner and it is drawn on the account maintained by him. If the cheque was stealthily collected by respondent No.1, petitioner would have intimated his banker about that and requested stoppage of payment. Courts below observed that there is no reason to disbelieve respondent No.1 regarding transaction leading to the execution. I find no reason to differ from that finding. 4. So far as service of notice is concerned, it is contended by learned counsel that the address given in Ext.P3 is not correct. Learned counsel referred me to the evidence of respondent No.1. But it is seen from Ext.P5, returned notice that intimation was given to the petitioner., The postman has endorsed that intimation was given to the petitioner. It is not shown that endorsement is not correct. Legality and regularity of the official act is to be presumed. That Crl.R.P.No.2581/2009 3 presumption is not rebutted. Moreover petitioner has no case that he was willing to pay the amount within fifteen days of the service of summons with copy of complaint. Therefore the contention that there is no service is unsustainable. I do not find reason to interfere with the conviction of the petitioner. 5. Appellate court while modifying the substantive sentence as simple imprisonment till rising of the court confirmed the direction for payment of compensation of Rs.1,50,000/- to respondent No.1 and the default sentence of imprisonment imposed by the learned Additional Chief Judicial Magistrate. Having regard to the nature of offence and the amount involved I find no reason to interfere with the substantive sentence as modified or direction for payment of compensation and default sentence as confirmed by the appellate court, at the instance of petitioner. 6. It is requested by learned counsel that considering the amount involved and the fact that petitioner is not able to raise the entire amount immediately, he may be granted six months’ time to deposit compensation. Having regard to the circumstances stated by learned counsel and the amount involved I am inclined to grant time till 29.1.2010 to deposit compensation. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted time till 29.1.2010 to deposit compensation in the trial court. It is made clear that it will be sufficient compliance of the direction for deposit of Crl.R.P.No.2581/2009 4 compensation if petitioner paid compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the above said period. Petitioner shall appear in the trial court on 30.1.2010 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks