IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 Crl.Rev.Pet.No. 2177 of 2009() ------------------------------ CRA.23/2007 of ADDL.DISTRICT AND SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.101/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------- IBRAHEEM, AGED 55, S/O MEERANNAN, RESIDING AT PATHAKUZHIYIL HOUSE, SIDA BUILDING, EDAKUNNAM, KANJIRAPALLY. BY ADV. SRI.P.A.MOHAMMED SHAH SRI.P.H.SHAJAHAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE: --------------- 1. GOPALA KRISHNAN NAIR, MANGALATHU HOUSE, PALAPRA, KANJIRAPALLY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2177 of 2009 -------------------------------------- Dated this the 7th day of July, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-II), Kottayam in Crl.Appeal No.23 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case arose on a complaint preferred by respondent No.1. According to him petitioner borrowed Rs.75,000/- from him on 12.10.2004 and issued Ext.P1, cheque dated 15.12.2004 for repayment of that debt. That cheque was dishonoured for insufficiency of funds. On getting information about dishonour respondent No.1 served statutory notice on petitioner on 29.12.2004. Respondent No.1 gave evidence as PW1. He examined PW2 to support his version regarding the transaction and execution of the cheque. According to the petitioner he had borrowed Rs.10,000/- from a friend of respondent No.1 and given signed blank cheque as security. It is his further contention that the said cheque (Ext.P1) has Crl.R.P.No.2177/2009 2 been misused. It is also the contention of the petitioner that he was not served with notice of dishonour. Courts below did not accept the contentions of the petitioner and found him guilty. 3. So far as execution of the cheque is concerned, there is evidence of PWs 1 and 2. It is admitted by petitioner that Ext.P1 contained his signature and it is drawn on the account maintained by him. According to him the cheque was given to a friend of respondent No.1 but he did not adduce evidence to prove or probabilise that contention. Respondent No.1 denied that suggestion. Respondent No.1 asserted that petitioner borrowed Rs.75,000/- from him and issued the cheque for repayment of that amount. Nothing is brought out to disbelieve respondent No.1 and his witness (PW2). Courts below have accepted evidence of respondent No.1 (PW1) and PW2 and found that petitioner issued the cheque for discharge of a legally enforceable debt/liability. 4. So far as contention regarding non-serving of statutory notice is concerned, Ext.P6 is produced to show that notice was served on petitioner. Learned counsel contends that petitioner had not received the notice. Under Section 27 of the General Clauses Act the presumption is that if a notice by registered post is sent to a person in correct address it reached the addressee. In this case there is no dispute that notice was issued to petitioner by registered post in his correct address. Hence, normally it should have reached the petitioner. Ext.P6 contains the acknowledgment for receipt of notice. When the notice is issued to the petitioner, I am inclined to think that the Crl.R.P.No.2177/2009 3 acknowledgment was signed by him. There is no reason to think otherwise. Petitioner did not examine the postman to show that notice was not served on him. There is no reason to think that notice was served on somebody other than its addressee. Petitioner was not successful in proving his contention regarding non-serving of statutory notice on him. On going through the judgments under challenge and hearing the counsel for petitioner I do not find reason to interfere with the finding of courts below regarding service of statutory notice on petitioner. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for four months. Petitioner was directed to pay Rs.75,000/- as compensation to respondent No.1 and in default of payment to undergo simple imprisonment for two months. Appellate court modified the substantive sentence as simple imprisonment till rising of the court and converted compensation as fine of Rs.75,000/-. Default sentence of imprisonment for three months was also provided. It was directed that fine if realized will be paid to respondent No.1 as compensation. Having regard to the nature of the offence and the amount involved there is little reason to interfere with the sentence as modified by the appellate court at the instance of petitioner. 6. Learned counsel requested six months’ time to deposit fine in the trial court. Having regard to the difficulties expressed by the petitioner and the amount involved I am inclined to grant time till 30.11.2009 to the petitioner to deposit fine in the trial court. Crl.R.P.No.2177/2009 4 Resultantly this revision fails. It is dismissed. Petitioner is granted time till 30.11.2009 to deposit fine in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on 1.12.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 1.12.2009. THOMAS P.JOSEPH, Judge. cks