IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 Crl.Rev.Pet.No. 1646 of 2009() ------------------------------ CRA.175/2003 of ADDL.SESSIONS COURT ADHOC-III, THALASSERY CC.225/2002 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- SUNILKUMAR.K,S/O.K.NANU,CHITHRALAYAM, CHALAKKUNNU,P.O.THOTTADA,KANNUR DISTRICT. BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. AJAYAKUMAR,S/O.K.P.VIJAYAN,PROP;BHARATH ELECTRICALS,COURT ROAD,TALIPARAMBA. 2. THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI RAVINDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1646 of 2009 -------------------------------------- Dated this the 27th day of May, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Case of respondent No.1 as concurrently found by the courts below is that petitioner purchased electronic items from him for a total sum of Rs.80,000/- and in partial discharge of the liability issued Ext.P1, cheque dated 21.8.1999 for Rs.25,274/- which was presented for encashment but was returned for insufficiency of funds. Following that, notice was given to the petitioner on 15.9.1999 intimating dishonour and demanding payment of the amount. Notice was returned unclaimed though intimation was served on the petitioner. Hence the complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). Respondent No.1 gave evidence as PW1 and testified to his case. Dishonour of the cheque for the reason stated above is proved by Exts.P2 and P6. Issue and service of notice are proved by Exts.P3 and P4. Ext.P5 is the returned notice. It is not disputed that notice was sent by registered post in correct address of the petitioner. When notice is sent by registered post in the correct address, it should normally reach the addressee. Endorsement in Ext.P5 is that inspite of giving intimation, Crl.R.P.No.1646/2009 2 petitioner did not claim it. Hence as found by the courts below there is deemed service of notice. 3. Contention raised by the petitioner is that he had given Ext.P1 to respondent No.1 as security for cost of the articles offered to be given to him on credit but he did not adduce any evidence in that line. That, petitioner had business transaction with respondent No.1 is evident from the plea the petitioner has raised. Petitioner did not prove or probabilise that the cheque reached respondent No.1 in the circumstances pleaded by him. That, petitioner refused to claim the notice inspite of getting intimation shows that he was aware of the claim being made against him by respondent No.1. In the facts and circumstances, courts below accepted the evidence of respondent No.1 and found that petitioner issued the cheque in partial discharge of the liability. Petitioner was also not successful in rebutting presumption under Section 139 of the Act. 4. It is pointed out by the counsel that counsel for petitioner had not argued the appeal before the appellate court. But it is seen that appellate court heard the arguments of counsel for respondent No.1, perused the records and disposed of the appeal. Conviction required no interference. 5. So far as sentence is concerned, Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months, to pay fine of Rs.30,000/- and in default of payment to undergo simple imprisonment for three Crl.R.P.No.1646/2009 3 months. Appellate court did not interfere with the sentence, one reason being that there was no representation for the petitioner in that court and that the appeal was not argued on behalf of the petitioner. In the facts and circumstances of the case I am satisfied that simple imprisonment till rising of the court and fine as awarded by the trial court is sufficient in the ends of justice. Resultantly, this revision petition is allowed in part to the extent that the substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. Petitioner is granted one month's time to deposit fine in the trial court. Petitioner shall appear in the trial court on 30.6.2009 to receive the sentence. Crl.M.A.No.5029 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks