IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 CRL.REV.PET.NO. 2433 OF 2003() --------------------------------------------- CRA.103/2002 OF ADDL.SESSIONS COURT, KOTTAYAM CC.9/2001 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------------- PARAMESWARA SARMA, PROPRIETOR, SASTHA FLAMES, ERUMELY. BY ADV. SRI.M.N.SUKUMARAN NAIR SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT(S): COMPLAINANT & STATE: ------------------------------------------------------------ 1. DEVASIA JOSEPH, MADATHUMURIYIL, PUTHUPPALLY P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.JOHNSON MANAYANI FOR R1 BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2433 of 2003 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of May, 2009 O R D E R -------------- Petitioner faced trial for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) on a complaint preferred by respondent No.1 alleging that the cheque issued by petitioner for Rs.1,10,000/- for the discharge of a legally enforceable debt/liability in his favour was dishonoured for insufficiency of funds and that in spite of dishonour intimation and demand for payment, petitioner did not pay the amount. Respondent No.1 gave evidence as P.W.1 and proved Exts.P1 to P5. Exhibit P1 is the cheque in question. Dishonour of the cheque is proved by Exts.P2 and P5. Issue and service of the notice are proved by Exts.P3 and P4. Petitioner when questioned under Section 313 of the Code of Criminal Procedure did not dispute the transaction or issuance of the cheque but only contended that he had discharged the liability and that he had no notice of dishonour. Petitioner gave evidence in that line as D.W.1. Courts below did not uphold the contention raised by him, found him guilty, convicted and sentenced him to undergo simple imprisonment for three months. He was directed to pay Rs.1,10,000/- as compensation. CRL. R.P. .No.2433 of 2003 -: 2 :- 2. Counsel on both sides submitted that even without calling for records this revision could be disposed of on the admitted facts. 3. The transaction, existence of a legally recoverable debt/liability towards respondent No.1 and execution of the cheque are not disputed. Contention that petitioner has discharged the liability is not established. Mere statement to that effect by the petitioner as D.W.1 is not sufficient. He has not produced any document to prove the discharge. So far as the service of statutory notice is concerned, Ext.P4 is the postal acknowledgment card. Petitioner contended that he did not receive the notice but he did not dispute the correctness of his address given in Exts.P3 and P4. Notice was issued to the petitioner in his business/residential addresses. Exhibit P4, acknowledgment card shows delivery of notice to the petitioner. Going by Section 27 of the General Clauses Act presumption is that when the notice is sent by registered post in the correct address it is delivered to the addressee. There is no reason why that presumption should not be drawn in the facts and circumstances of this case. Learned magistrate has considered that aspect to conclude on the contention raised by the petitioner regarding service of notice. 4. Counsel for petitioner submitted that substantive sentence awarded is excessive and the same may be modified as simple imprisonment till rising of the court. He further submitted that three CRL. R.P. .No.2433 of 2003 -: 3 :- months' time may be granted to deposit the compensation in the trial court. He also submitted that petitioner has already deposited Rs.55,000/- pursuant to the order of this Court. 5. In the facts and circumstances of the case, the amount involved and object of legislation I am inclined to modify the substantive sentence imposed on the petitioner by the courts below as simple imprisonment till rising of the court while retaining the direction for payment of compensation. Resultantly, revision is allowed in part in the following lines: (i) Substantive sentence awarded to petitioner is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted three months' time from this day to deposit Rs.1,10,000/- (Rupees One lakh and ten thousand only) as compensation in the trial court for payment to respondent No.1. In case of default, he shall undergo simple imprisonment for three months. (iii) It is made clear that it shall be sufficient compliance of condition (ii) if petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the said period three months. (iv) Amount if any deposited by the petitioner in any of the courts below can be withdrawn by respondent No.1 and the same shall be adjusted in the compensation directed CRL. R.P. .No.2433 of 2003 -: 4 :- to be deposited hereby. Petitioner shall appear in the trial court on 28.8.2009 to receive the sentence. Criminal Miscellaneous Application No.9719 of 20034 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv