IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 Crl.Rev.Pet.No. 1882 of 2009() ------------------------------ CRA.113/2005 of ADDL.SESSIONS COURT (ADHOC I), KOTTAYAM CC.137/2004 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVISION PETITIONER:APPELLANT:ACCUSED: ------------------------------------------------------------------------ BINOY VARGHESE, S/O.VARGHESE,AGED 44 YEARS, R/AT KALATHIPARAMBIL (H) MANARCADU PO., MANARCADU VILLAGE, KOTTAYAM TALUK. BY ADVS. MR.TOM JOSE, SMT.GEETHA JOB(OZHUKAYIL). RESPONDENT(S): ---------------------------- 1. K.P.LUKE, NEDUMTHURUTHY PUTHENPURAL VEEDU, NEENDOR, KOTTAYAM TALUK, KOTTAYAM. 2. STATE OF KERALA R/AT PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV.MR.M.P.MADHAVANKUTTY R2 BY PUBLIC PROSECUTOR MR. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO.1882 OF 2009 ---------------------------------------- Dated this the 17th day of June, 2009 ORDER Respondent No.1 appears through counsel. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc –I), Kottayam in Crl. Appeal No.113/2005 confirming conviction of the petitioner but modifying sentence for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case originated on a complaint preferred by respondent No.1. Case of respondent No.1 is that petitioner borrowed Rs.50,000/- from him and for the discharge of that liability issued the cheque (Ext.P2). Dishonour of that cheque for insufficiency of funds on presentation by respondent No.1 is proved by Ext.P3. He issued notice to the petitioner intimating dishonour and demanding payment. Exts.P4 and P6 are produced to show that notice was issued to the petitioner in his correct address by registered post. Ext.P5 is the returned cover. According to respondent No.1 in Crl.R.P.No.1882/09 2 spite of due intimation about registered notice given to the petitioner, he did not claim it. Power of attorney holder of respondent No.1 gave evidence as PW1. Ext.P1 is the power of attorney. He claimed that he has direct knowledge about the transaction and execution of the cheque. He is a staff in the office of respondent No.1 and claimed that petitioner borrowed Rs.50,000/- from respondent No.1 on 20.5.2002 and for the discharge of that liability, issued the cheque. 3. So far as deemed service of notice is concerned, it is not in dispute that notice was issued to the petitioner in his correct address. Learned magistrate has referred to the address of the petitioner in the proceeding in that court and observed that address given in such proceeding is the same as in Exts.P4 and P6. Presumption is that when notice is sent by registered post in the correct address it reached the addressee. Ext.P5 is the returned cover which contains endorsement regarding service of intimation to the petitioner. That endorsement is made by the postman in the discharge of his official duty and hence must be presumed to be properly done. Therefore courts below are justified in holding in favour of deemed service of notice on petitioner. Crl.R.P.No.1882/09 3 4. So far as execution of Ext.P2 is concerned, contention of petitioner is that only Rs.5,000/- is due to respondent No.1 and that the cheque was given as security. Petitioner did not prove or probabilise that contention by adducing evidence or bringing out circumstances from the evidence of PW1. Ext.P2 is for Rs.50,000/-. That cheque is produced by respondent No.1 from his custody. It is admitted that petitioner had financial transaction with respondent No.1 and he owed money to respondent No.1. He did not prove or probabilise that his liability to respondent No.1. is only to the tune of Rs.5,000/-. That notice issued to him was returned 'unclaimed' in spite of intimation indicated that he was aware of the claim being made on behalf of respondent No.1. Courts below have considered the evidence and circumstances in the case to hold in favour of due execution of the cheque for the discharge of a legally enforceable debt/liability. Petitioner failed to rebut the presumption under Section 139 of the Act. I find no reason to interfere with that finding as it is not visited with any illegality, irregularity or impropriety. 5. Learned magistrate sentenced the petitioner to undergo Simple Imprisonment for four months. He was Crl.R.P.No.1882/09 4 directed to pay Rs.50,000/- as compensation. Learned Additional Sessions Judge modified the substantive sentence to Simple Imprisonment till rising of the court. The direction for payment of compensation and default sentence provided were confirmed. There is no reason to interfere with the sentence as modified by the appellate court and the direction for payment of compensation with the default sentence. 6. Learned counsel for petitioner submitted that petitioner is prepared to deposit the compensation in the trial court within two weeks from this day. Revision petition fails. It is dismissed. Petitioner is granted two weeks time from today to deposit compensation in the trial court as ordered by the appellate court for payment to respondent No.1. Petitioner shall appear in the trial court on 3.7.2009. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1882/09 5