IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 Crl.Rev.Pet.No. 273 of 2003 ------------------------------- (CRL. A.205/1999 of III ADDL SESSIONS COURT, KOZHIKODE) CC.295/1996 of J.M.F.C.-I,KOZHIKODE REVISION PETITIONER/APPELLANT/ACCUSED:: ----------------------------------------- MRS. R. RAJAKUMARI VENU, BOMBAY FLATS, VAZHUTHACAUD, TRIVANDRUM. BY ADVS.SRI.K.K.VIJAYAN SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.SUMAN CHAKRAVARTHY RESPONDENTS/ RESPONDENTS/STATE & COMPLAINANT: ---------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JACOB P. MATHEW, S/O. P.V. MATHEW, GEORGE HOUSE, 1/925, NEAR COLLECTOR'S BUNGLOW, WEST HILL P.O., CALICUT-5. R2 BY SRI.K.VINODKUMAR [DELAY], SMT.K.V.RESHMI & SRI. NIRMAL SACHNDRAN PUBLIC PROSECUTOR SMT. S. HYMA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-12-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. R.P. 273 OF 2003 = = = = = = = = = = = = = DATED THIS, THE 23rd DAY OF DECEMBER, 2011. O R D E R This revision petition is preferred by the accused in C.C. 295 of 1996 on the file of the Judicial Magistrate of the First Class-I, Kozhikode. The revision petitioner was prosecuted by the second respondent alleging offence under Section 138 of the Negotiable Instruments Act with an allegation that the revision petitioner borrowed a sum of Rs. 1,00,000/- from the second respondent and in discharge of the liability, Ext.P1 cheque dated 9.10.1995, drawn on Union Bank of India, was issued and that when presented for collection through the Canara Bank, Cherootty Road Branch, Calicut, Ext.P1 was returned dishonoured for insufficient funds and that the notice demanding discharge of the liability was returned unserved since the revision petitioner shifted her residence. 2. The revision petitioner pleaded not guilty when the particulars of the complaint was read and explained to her. Therefore, she was sent for trial. PWs 1 and 2 were examined on the side of the prosecution besides marking Exts.P1 to P5. The revision petitioner herself was examined as DW.1. Ext.D1 was also marked on her side. After closing the evidence for CRL. R.P. 273/2003 2 the prosecution, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. She took up a defence that she had borrowed a sum of Rs.75,000/- from one Sreejith, a colleague of the revision petitioner, who later obtained a job in Indian Police Service and that as a security, a blank cheque was given. The revision petitioner entered the witness box and adduced supporting evidence. To prove that the notice was in wrong address, Ext.D1 was relied upon. The learned magistrate, on appraisal of the evidence, arrived at a finding of guilt. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for one month and a fine of Rs. 1,25,000/-. Rs. 1,00,000/- was ordered to be paid to the second respondent as compensation in the event of realization of the fine. Aggrieved by the above conviction and sentence, she preferred Crl. Appeal 205 of 1999 before the Sessions Judge, Kozhikode. The appeal was subsequently, made over to the III Additional Sessions judge, who by the impugned judgment dated 23.7.2002, confirmed the conviction. But the fine of Rs. 1,25,000/- was reduced to Rs. 5,000/- with direction to pay Rs. 1, 20,000/- as compensation to the defacto complainant. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition is filed. CRL. R.P. 273/2003 3 3. Though this revision petition was posted on various occasions from August, 2011 onwards, there was no representation for the revision petitioner. In the above circumstance, the judgment impugned and the evidence on record were perused. 4. Going by the evidence on record and the judgment impugned, I find that the second respondent, through his evidence as PW.1, had succeeded to establish that the revision petitioner owed a sum of Rs. 1,00,000/- in discharge of which Ext.P1 cheque dated 9.10.1995 drawn on Union Bank of India was issued and when presented for collection, as evidenced by Ext.P2 memo, it was returned dishonoured for insufficient funds and that demanding discharge, a lawyer notice, copy of which was marked as Ext.P3, was caused and it was returned unserved since the addressee shifted residence. To bring on record that the revision petitioner was residing in the address shown in Ext.P3, the postmaster was examined as PW.2. As against that evidence, the revision petitioner relied upon Ext.D1. In cross examination, the revision petitioner had to admit that Ext. D1 letter was addressed to her at her request from her office and that the address shown in Ext.D1 which is different from the address given in Ext.P3 is only after 1999. Whereas the notice on hand was issued on 15.2.1996. The revision petitioner has no case that the address shown in CRL. R.P. 273/2003 4 Ext.P3 is not her address or that she had intimated the change of address to the postal authorities. Therefore, if the petitioner shifted residence, the notice was returned unserved only because of the failure of the revision petitioner to intimate the change of address to the postal authorities. In case there was no shifting of residence, the notice was purposely avoided. In that circumstance, it has to be construed that there is constructive notice. 5. Though the revision petitioner as DW.1 would depose that for borrowing Rs. 75,000/- from Sreejith, Ext.P1 cheque was issued blank, the courts below did not believe her testimony. The revision petitioner has no case that the liability, for the security of which Ext.P1 was issued, was at any time discharged. On the side of the second respondent, there is the evidence that Ext.P1 was issued to him in discharge of the liability of Rs. 1,00,000/-. There is oath against oath. Courts below concurrently believed PW.1 and disbelieved DW.1. I find no reason to interfere with the concurrent finding of facts. The evidence of DW.1 is not sufficient to rebut the legal presumption under Sections 118 and 139 of the Negotiable Instruments Act that Ext.P1 was given for valuable consideration and issued in discharge of the liability. Legal presumptions also support PW.1. Therefore, the courts below have correctly appreciated the evidence and rightly arrived at a conclusion of guilt. CRL. R.P. 273/2003 5 6. Having due regard to the fact that the petitioner was an employee in All India Radio and that now she is retired and that basing upon an ordinary money transaction, the revision petitioner had to face the prosecution, I find that the revision petitioner is entitled to a little leniency, especially when the appellate court had awarded compensation in addition to the fine; and that a sentence of imprisonment till the rising of the court would meet the ends of justice. In the result, this revision petition is allowed in part. While confirming the conviction, the substantive sentence is reduced to imprisonment till the rising of the court. The fine and the order to pay compensation are sustained with the default sentence of simple imprisonment for three months for non payment of fine and simple imprisonment for a further period of six months for the nonpayment of compensation. P.S. GOPINATHAN, (JUDGE) knc/- CRL. R.P. 273/2003 6 P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. R.P. 273 OF 2003 = = = = = = = = = = = = = O R D E R DATED : 23rd DECEMBER, 2011.