IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 Crl.Rev.Pet.No. 2645 of 2010() ------------------------------ CRA.92/2009 of SESSIONS COURT, KASARAGOD CC.318/2008 of JUDICIAL FIRST CLASS MAGISTRATE II (ADDITIONAL MUNSIFF) KASARAGOD. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------------------- MOHAMMED P.M., AGED 43 YEARS, S/O.LATE USMAN, PENJALA HOUSE, THALAPADY, D.K.DISTRICT, KARNATAKA STATE. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT(S): COMPLAINANT/STATE ------------------------------------------------------------- 1. H.RAMA, RETAIRED LAB ASSISTANCE, SIVA KRIPA SIVAPAL, NEAR KEERTHISWERA TEMPLE, MANJESHWAR, KASARAGOD. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: kl. V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2645 of 2010 ------------------------------- Dated this the 6th day of September, 2010. O R D E R The accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that the accused/revision petitioner borrowed a sum of Rs.2,00,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 18.1.2008 for a sum of Rs.2,00,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judl. First Class Magistrate Court-II (Addl. Munsiff), Kasaragod, by filing a formal complaint, upon Crl. R.P.No.2645 of 2010 2 which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.318/08. During the trial of the case, besides PW1, who is the complainant himself, two more witnesses were also examined from the side of the complainant, as Pws.2 and 3 - the postal authorities and Exts.P1 to P6 were produced and marked. From the side of the defence, Dw.1 was examined and Ext.D1 was produced and marked. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/ accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/ revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 3 months and to pay a compensation of Rs.2,00,000/- u/s.357(3) of Cr.P.C. and the default sentence was fixed as 1 month simple imprisonment. It is also ordered that on realisation of the compensation amount, Crl. R.P.No.2645 of 2010 3 the entire amount shall be paid to the complainant. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 28.6.2010 in Crl.A.92/09, the Court of Sessions Judge-Kasaragod, allowed the appeal only in part and while confirming the conviction, reduced the sentence of imprisonment to 10 days simple imprisonment. The order to pay the compensation amount is confirmed but the default sentence is enhanced to 4 months simple imprisonment. It is the above conviction and sentence challenged in this revision petition. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Reiterating the stand taken by the accused/revision petitioner during the trial and appeal, submitted that the complainant has not established the transaction and also the execution and issuance of the cheque. But no case is made out to interfere with the concurrent findings of the trial court as well as the lower appellate court. Crl. R.P.No.2645 of 2010 4 6. The learned counsel for the revision petitioner vehemently argued that, the essential ingredient of S.138 of NI Act is not established by the complainant, as no statutory notice was served on the accused. In support of the above contention, the learned counsel submitted that though the complainant has claimed that he had sent the notice in the address of the accused, the available materials are not sufficient to show that a proper notice was served on the accused. On the basis of the evidence of DW1, who is none other than the mother of the accused, the contention of the learned counsel is that the mother of the accused, who was authorised to receive the registered postal articles, has categorically stated that she never put her thumb impression on Ext.P5 postal acknowledgment. Thus according to the learned counsel, the postal articles was received by somebody else and there is no proper service of notice on the accused. 7. I am unable to sustain the above contention, especially when the trial court as well as the lower appellate court, by assigning proper and valid reason repelled the above contention. Crl. R.P.No.2645 of 2010 5 It is also relevant to note that in this case, the complainant has also produced Et.P6 authorisation letter dated 10.2.2008 and also examined Pws.2 and 3. PW2, the Post Woman, as recorded by the courts below, has stated that she had served the notice on DW1 and DW1 had put her thumb impression on the A.D. Card and PW3 also deposed about Ext.P6 authorisation letter etc. In the light of the settled legal position, if the letter was sent in the correct address of the accused and even if the same was returned, it is only proper to presume that the service of notice was complete. In the present case, Pws.2 and 3 who are independent witnesses, deposed in favour of the complainant regarding the service of notice. While appreciating the evidence of Pws.2 and 3, the trial court as well as the lower appellate court have found no reason to disbelieve the version of Pws.2 and 3. Under the above factual background, I find no reason to interfere with the findings arrived on by the courts below, regarding the service of notice and which findings of the courts are supported by proper reasons. In the light of the above facts and circumstances, I find no reason to interfere with the concurrent Crl. R.P.No.2645 of 2010 6 findings arrived on by the courts below. 8. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, the sentence of imprisonment ordered by the courts below are unreasonable and exorbitant and the same may be set asided and also submitted that, some breathing time may be granted to pay the compensation amount. Having regard to the fact s and circumstances involved in the case, I am of the view that the said submission can be considered but subject to other relevant inputs involved in the case. 9. The apex court in a recent decision reported in Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457) has held that, in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. In the present case, the cheque in question is dated 18.1.2008, that too for an amount of Rs.2,00,000/-. Thus as per the records and the findings of the courts below, which approved Crl. R.P.No.2645 of 2010 7 by this court, a sum of Rs.2,00,000/-, which belonged to the complainant is with the revision petitioner for the last 2 years. Therefore considering the above referred facts and settled legal position, I am of the view that some modification can be effected with respect to the substantive sentence of imprisonment but at the same time the compensation amount can be enhanced slightly, while granting some time to pay the same. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment is modified and reduced to one day simple imprisonment ie., till the rising of the court and the revision petitioner is directed to pay a sum of Rs.2,20,000/- as compensation u/s.357(3) of Cr.P.C. to the complainant, within 3 months from today and in case of default in paying the compensation amount, the revision petitioner is directed to undergo simple imprisonment for 5 months. Accordingly, the revision petitioner is directed to appear before the trial court on 4.12.2010, to receive the sentence of Crl. R.P.No.2645 of 2010 8 imprisonment and to pay the compensation amount, as fixed by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in paying the compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. Coercive steps if any, pending against the revision petitioner shall be deferred till 4.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/