IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 Crl.Rev.Pet.No. 2259 of 2004 (B) ------------------------------------------------- CRA.407/1997 of SESSIONS COURT, THALASSERY STC.1317/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... REVN. PETITIONER/APPELLANT ---------------------------------------------------- KOYILERIAN BHASKARAN, S/O.KARTHIYANI AMMA, DRIVER, R/A. NEAR CHANALI MILL, THEKKUMBAD, KUNHIMANGALAM. BY ADV. SRI.V.RAJAGOPAL RESPONDENT(S)/COMPLAINANT AND STATE ------------------------------------------------------------------------- 1. K.ASSAINAR, S/O.KANNOOKARATHI NABEESA, ANGADI, P.O. KUNHIMANGALAM. 2. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2259 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July 2010 ORDER Petitioner who has been concurrently found guilty under Section 138 of the Negotiable Instruments Act has preferred this revision petition challenging his order of conviction and sentence. The trial court sentenced the petitioner to undergo simple imprisonment for three months. However, while confirming the order of conviction, the appellate court modified and reduced the sentence to simple imprisonment for one month. The said order of conviction and sentence is under challenge in this revision petition. 2. The case of the complainant in brief was that petitioner/accused had borrowed a sum of Rs.33,000/- from him and issued Ext.P1 cheque dated April 5, 1995 in discharge of the said liability. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the petitioner. Though a statutory demand notice was issued, the petitioner/accused refused to accept it, even in spite of service of intimation by the postal authority. The liability was not discharged also. Hence the complaint. 3. The complainant got himself examined as PW1. The managers of the two banks were examined as PWs2 and 3 and Exts.P1 to P6 were also marked in the case. There was no oral or documentary evidence on the Crl.R.P.No.2259 OF 2004 :: 2 :: side of the defence. 4. The defence set up by the petitioner/accused appears to be total denial of any transaction between him and the complainant. However, as rightly noticed by the appellate court, petitioner did not specifically deny his signature in Ext.P1 cheque. In other words, petitioner admitted execution of the cheque, though tacitly. In the absence of any contra evidence adduced by the petitioner/accused, the courts below rightly found that the petitioner had totally failed in discharging the burden cast on him. 5. However, Sri.P.T.Antony, learned counsel for the petitioner, contends that the complainant had totally failed in proving that he had complied with the statutory mandate contained in Section 138(1)(b), in as much as no satisfactory evidence was adduced to show that statutory demand notice was issued in the correct address of the petitioner and also that it was in fact served on him. 6. But, as rightly noticed by the appellate court, the endorsement made by the postman on Ext.P4 postal cover clearly showed that he had redirected the notice to the new residential address of the petitioner. Intimation was given to the addressee in the new address. But the endorsement further revealed that the addressee had refused to collect the postal article (Ext.P4 registered notice) from the post office. In that Crl.R.P.No.2259 OF 2004 :: 3 :: view of the matter, the appellate court came to the right conclusion that the view taken by the learned Magistrate that there was proper service of statutory notice cannot be faulted at all. I do not find any reason to interfere with the said concurrent finding as regards service of statutory demand notice on the petitioner. 7. Having carefully perused the entire materials available on record and having heard learned counsel for the parties, I do not find any reason to interfere with the concurrent order of conviction. There is no merit in any of the contentions raised by the petitioner in this regard. 8. It is brought to my notice that petitioner had deposited a sum of Rs.15,000/- as directed by this court as a condition precedent for suspension of the sentence imposed on him. Learned counsel for the respondent/complainant submits that the petitioner has complied with the above direction. 9. Therefore, the sentence imposed on the petitioner shall stand modified as hereunder: 10. Petitioner shall undergo imprisonment till the rising of the court and pay a sum of Rs.35,000/- as compensation to the respondent/complainant under Section 357(3) of the Code of Criminal Procedure. Credit shall be given to the sum of Rs.15,000/-, if already deposited. On failure of payment of the amount of compensation of Crl.R.P.No.2259 OF 2004 :: 4 :: Rs.35,000/- as directed above, the petitioner shall suffer simple imprisonment for one month. Petitioner shall appear before the trial court on August 4, 2010 and remit the amount of compensation as directed above. On his appearance, learned Magistrate shall ensure that the petitioner undergoes imprisonment till the rising of the court on that day. (A.K.BASHEER, JUDGE) jes