IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 Crl.Rev.Pet.No. 3760 of 2008() ------------------------------------------- CRA.378/2006 of SESSIONS COURT, TRIVANDRUM ST.463/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD .................... REVN. PETITIONER(S): ACCUSED ---------------------------------- V.SURESH KUMAR, S/O. K.VASUDEVAN ASHARI, BHADRAM, PLAVARA, PACHA P.O., NEDUMANGAD. BY ADV. SRI.A.RAJASIMHAN RESPONDENT(S): COMPLAINANT AND THE STATE -------------------------- 1. G.CHANDRAN, S/O. GOVINDAN, LEKSHMI NILAYAM, PULIYOOR, PACHA, NANNIYODE, NEDUMANGAD. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.M.CHANDRA BOSE FOR R1 PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3760 OF 2006 ............................................ DATED THIS THE 21st DAY OF OCTOBER, 2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under Section 138 of N.I.Act. Second respondent is the complainant. Case of second respondent is that petitioner borrowed Rs.5,00,000/- and as security towards its payment, issued Ext.P1 cheque drawn in his account maintained in Kollam Branch of Corporation Bank and when Ext.P1 cheque was presented for encashment, it was dishonoured under Ext.P2 for want of sufficient funds. Second respondent sent Ext.P3 notice demanding the amount covered by Ext.P1. Petitioner received it under Ext.P6 postal acknowledgment card, but failed to pay the amount and thereby committed the offence under Section 138 of N.I.Act. Petitioner pleaded not guilty. Petitioner was not examined. Second respondent was examined as PW1. Exts.P1 to P6 were marked. 2. Learned Chief Judicial Magistrate, on the evidence, found the petitioner guilty and convicted and sentenced him to simple imprisonment for one year and a fine of Rs.5,20,000/- and in default, simple imprisonment for three months. On realisation of fine, Rs.5,10,000/- was directed to be paid to second respondent as compensation under Section 357(1) of Code of Criminal Procedure. CRRP 3760/2006 2 Petitioner challenged the conviction and sentence before Sessions Court, Kollam in Crl.A.369 of 2004. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned senior counsel appearing for petitioner and learned counsel appearing for second respondent were heard. 4. Learned senior counsel argued that there is no evidence to prove that Ext.P1 cheque was issued towards repayment of a legally recoverable debt as original transaction was not proved. It was argued that except the interested version of PW1, there is no evidence to prove the original transaction and therefore courts below were not justified in convicting the petitioner for the offence under Section 138 of N.I.Act. Learned senior counsel also argued that in any case, in the absence of a notice served on petitioner as provided under Section 138(b) of N.I.Act, an offence under Section 138 cannot be attracted and Ext.P6 acknowledgment show that it was not the petitioner, who received the notice but some other person claiming to be an agent and petitioner has no such agent and therefore there is no evidence to prove that a notice demanding the amount covered by Ext.P1 cheque was served on the petitioner and therefore the conviction is unsustainable. Learned senior counsel finally submitted that CRRP 3760/2006 3 petitioner was arrested on 19.2.2008 and is undergoing sentence since then, as he could not pay the amount as directed by this court, while suspending the sentence and therefore sentence of imprisonment may be reduced to the period, petitioner has already undergone. Learned counsel appearing for second respondent argued that learned Magistrate and learned Sessions Judge properly appreciated the evidence and found that Ext.P1 cheque was issued towards the amount payable and it was dishonoured for want of sufficient funds and Ext.P4 notice was sent in the correct address of petitioner and it was served under Ext.P6 and therefore conviction and sentence is perfectly legal. 5. Second respondent was examined as PW1. Evidence of PW1 is that petitioner borrowed Rs.5,00,000/- and towards its payment, as security, issued Ext.P1 cheque. Though PW1 was cross-examined even with regard to his financial capacity, learned Magistrate and learned Sessions Judge, on appreciation of evidence, found that Ext.P1 cheque was issued towards the amount payable by petitioner to second respondent on account of the borrowal. Though no other evidence was adduced to prove the original transaction, on going through the evidence of PW1 and the answer given by the petitioner at the time of his questioning under Section 313 of Code of Criminal Procedure, I cannot agree with the argument of learned senior CRRP 3760/2006 4 counsel that the evidence was not properly appreciated. Petitioner was not examined. What was stated by petitioner at the time of questioning under Section 313 of Code of Criminal Procedure, was only that he did not issue the cheque. When PW1 was cross examined, he was asked whether PW1 did not obtain blank signed paper and using that signed paper, a civil suit was not instituted. Again a suggestion was put to PW1 that petitioner had instructed PW1 several times not to present the cheque implying that petitioner issued the cheque. When the entire evidence is appreciated in the proper perspective, as has been done by courts below, it is clear that Ext.P1 cheque was issued towards repayment of the amount due. Evidence also establish that Ext.P1 cheque was dishonoured for want of sufficient funds. Though learned senior counsel vehemently argued that there is no proper service of notice as provided under Section 138(b) of N.I.Act, petitioner has no case that the address shown in Ext.P4, to which the notice as provided under Section 138(b) was sent, is not his correct address. Though learned senior counsel argued that as seen from Ext.P6, the notice was received by an agent and petitioner has no such agent, when PW1 was cross examined, it was not even suggested to PW1 that petitioner has no agent. Even when questioned under Section 313 of Code of Criminal Procedure, petitioner has no case that he did not appoint the person who received CRRP 3760/2006 5 Ext.P4 notice or the person who received Ext.P6 is not his agent. In such circumstances, when notice was sent in the correct address and it is received by a person stating to be the agent of the petitioner when petitioner has no case that he did not authorise that person to receive the same, it could only be taken that notice was received by the person authorised by the petitioner and therefore it is proper service. In spite of notice, petitioner did not pay the amount. Hence conviction of petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 6. Then the question is with regard to sentence. Learned Magistrate sentenced the petitioner to simple imprisonment for one year in addition to a fine of Rs.5,20,000/- . Cheque is for Rs.5,00,000/-. Section 138 of N.I.Act provides for a fine upto double the amount covered by the cheque. Substantive sentence as it stood then was one year. Learned Sessions Judge also confirmed the sentence. Learned senior counsel submitted that petitioner is undergoing imprisonment on his failure to pay the amount directed to be deposited by this court as a condition to suspend the sentence and petitioner has already undergone the sentence for more than eight months, on the facts, interest of justice will be met if the substantive sentence is reduced to the period petitioner had already undergone in this case. I do not find any reason to interfere with the fine. CRRP 3760/2006 6 Considering the fact that because of his financial conditions, petitioner could not pay the fine, default sentence is also set aside. Learned Chief Judicial Magistrate is entitled to enforce the fine as provided under Code of Criminal Procedure. 7. Revision is disposed, confirming the conviction for the offence under Section 138 of N.I.Act but modifying the sentence to simple imprisonment for the period petitioner had already undergone and a fine of Rs.5,20,000/- but without default sentence to be paid within three months. M.SASIDHARAN NAMBIAR, JUDGE lgk/-