IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 Crl.Rev.Pet.No. 2113 of 2009() ------------------------------ CRA.196/2007 of SESSIONS COURT, THODUPUZHA ST.45/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- FRANCIS P.V., S/O. VARKEY, PUTHENPURACKAL HOUSE, MULLAPPUZHACHAL P.O., VAZHAKULAM, MUVATTUPUZHA TALUK. BY ADV. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. BIBIN JOSE, NEDUMKALLEL HOUSE, EZHALLOOR P.O., THODUPUZHA TALUK. PUBLIC PROSECUTOR SHIR C.S.HRITHWIK FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2113 of 2009 -------------------------------------- Dated this the 3rd day of July, 2009. ORDER This revision is at the instance of the accused against whom concurrent findings have been made by the courts below as to the due execution of a cheque, its dishonour for insufficiency of funds and service of statutory notice in a prosecution under Section 138 of the Negotiable Instruments Act (for short, “the Act”). 2. Proceeding arose on a complaint preferred by respondent No.2. He claimed that he is an agriculturist by profession and sold pineapple to the petitioner, a merchant at Vazhakulam on 10.11.2006. For the sum of Rs.22,150/- due to him on that account, petitioner issued Ext.P1, cheque dated 4.12.2006. That cheque was dishonoured for insufficiency of funds. Respondent No.2 issued notice to the petitioner by registered post intimating dishonour and demanding payment of the amount. According to respondent No.2, the notice was served on petitioner. Respondent No.2 gave evidence as PW1 and testified to his case. PW2 is the postman who is said to have delivered the registered notice to the petitioner. In defence, petitioner contended that he had no transaction with respondent No.2 and instead, had given the cheque to one Mohanan as security for a transaction he had with the said Mohanan. That cheque was stealthily obtained by respondent No.2. Courts Crl.RP No.2113/2009 2 below found in favour of due execution of the cheque, its dishonour for insufficiency of funds and due service of statutory notice on petitioner. So far as dishonour of the cheque is concerned, it is proved by Exts.P2 and P3 no argument is advanced before me. 3. It is contended that there is no due service of notice on petitioner. According to the petitioner, notice was not served on him but on his wife (DW1) who has signed Ext.P6, acknowledgment card. Learned counsel placed reliance on the decision of the Supreme Court in Thomas v.Jaleel (2009 (2) KLT 990) where it was held that service of statutory notice on the wife of accused is not sufficient compliance with Section 138(b) of the Act. 4. DW1, wife of petitioner stated in her evidence that at a time when petitioner was not staying with her, postman delivered the registered notice to her and insisted her to sign the acknowledgment card. She obliged. She also stated that for about five months she had not enquired about petitioner, her husband. PW2, postman on the other hand stated that he delivered the notice to the petitioner in the presence of DW1. As petitioner's right hand was not well (to sign the acknowledgment card) and as he had not taken with him the stamp pad (to get the thumb impression of petitioner) the signature of DW1 was taken on the acknowledgment card. It is true that PW2 has not got endorsement on Ext.P6, the acknowledgment card about the circumstances in which he took the signature of DW1 on it. But there was nothing to disbelieve the evidence of Crl.RP No.2113/2009 3 PW2 as against DW1, wife of petitioner whose evidence did not appear to the courts below as truthful. Courts below observed that version of DW1 that though there was no enmity between herself and petitioner, she did not enquire about whereabouts of petitioner is quite unbelievable and that there is no reason to disbelieve the evidence of PW2, the postman. That being a finding which rested on a proper appreciation of evidence and as the finding is not vitiated by any illegality, irregularity or impropriety, there is little reason to interfere in revision. 5. In the decision relied on by learned counsel it is held that service of notice must be on the accused. There cannot be a contention that it is sufficient that notice is served on somebody else. Necessarily, notice has to be served on the accused, for, he has to be notified about the dishonour of cheque and demand for payment of the amount within the statutory time. In this case, there is evidence of PW2 that notice was delivered to the petitioner himself though on account of physical infirmity for the right hand, petitioner could not subscribe his signature in the acknowledgment card which duty was entrusted to his wife and which she (DW1) performed. Therefore, going by the evidence of PW2 notice was served on the petitioner. The decision relied on by learned counsel is thus distinguishable on facts. 6. A precedent has to be considered in the facts and circumstances of the case in which it was laid down. A case is authority for what it actually Crl.RP No.2113/2009 4 decides. The Supreme Court held in Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213] that, “..................the ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.....................” Again in Bhavnagar University v. Palitana Sugar Mills (P) [(2003) 2SCC 111] the Supreme Court said that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. Lord Denning (as quoted in Bank of India v. K.Mohan Das - [(2009) 5 SCC 313] said: “Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblances to another case is not at all decisive” 7. Before applying the decision in Thomas v. Jaleel (2009 (2) KLT 990) it is necessary, therefore, to see whether the facts of that case is identical Crl.RP No.2113/2009 5 with that of the case on hand. Here, delivery of notice is to the petitioner himself, who on account of illness to the right hand was unable to subscribe his signature on the acknowledgment card. As the postman was not ready with the stamp pad to have the thumb impression of petitioner affixed on the acknowledgment card, signature of his wife (DW1) was taken on the acknowledgment card. That makes the whole difference between this case and the case decided in Thomas v. Jaleel. Applying the principle concerning precedential value of decisions stated above, petitioner cannot in the facts and evidence of this case successfully contend that there is no service of notice on petitioner. Decision relied by learned counsel has no application to the facts of the case. 8. Next question is whether due execution of the cheque is proved. Regarding that, there is evidence of respondent No.2. According to the petitioner, he had no transaction with respondent No.2 and instead he had given a signed blank cheque to one Mohanan which has been misused by respondent No.2. In that regard what is available is only the suggestion made by petitioner to respondent No.2 which the latter denied. Petitioner did not respond to the notice taking up the contention which he pressed into service in the courts below and again attempted to, in this revision. It is not disputed that Ext.P1 contained signature of the petitioner and it is drawn on the account maintained by him. Nothing is brought out in the evidence of respondent No.2 to disbelieve him. As such no interference is called for with respect to the concurrent finding Crl.RP No.2113/2009 6 entered by the courts below regarding due execution of the cheque. 9. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay compensation of Rs.30,000/- to respondent No.2 and in default of payment to undergo simple imprisonment for one month. Appellate court did not interfere with the sentence, direction regarding payment of compensation or the default sentence. Learned counsel requested that leniency may be shown to the petitioner in the matter of sentence. He requested four months' time to deposit compensation in the trial court. 10. Having regard to the nature of offence and the object of legislation, I am of the view that simple imprisonment till rising of the court and compensation awarded by the learned magistrate is sufficient in the ends of justice. Petitioner is granted three months' time from today to deposit compensation. In case of failure petitioner has to undergo simple imprisonment for three months. 11. In view of the order I proposed to pass in this revision which is not prejudicial to respondent No.2, I have dispensed with notice to respondent No.2. Resultantly, this revision is allowed in part to the following extent: i. Sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is granted three months' time from today to deposit Crl.RP No.2113/2009 7 in the trial court compensation awarded by learned magistrate. In case of failure, petitioner has to undergo simple imprisonment for three months. iii. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid the compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the said period of three months. Petitioner shall appear in the trial court on 5.10.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks