IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 CRL.REV.PET.NO. 1878 OF 2009() ------------------------------------------- CRA.75/2007 OF SESSIONS COURT, PATHANAMTHITTA ST.55/2005 OF CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: ------------------------------------------------------------- N.V. JAYAPRAKASH, THUSHARA PHARMACEUTICALS, POONKAVU, MALLASSERY P.O., PATHANAMTHITTA. BY ADV. SRI.P.A.MOHAMMED SHAH SRI.P.H.SHAJAHAN SRI.MOHAMMED SHABEER RESPONDENT(S) - RESPONDENTS - COMPLAINANT & STATE: -------------------------------------------------------------------------- 1. P. SOMANATHAN, SIVAVILAS FINANCIERS, ATHUMPOONKULAM, PAYYANAMON P.O., KONNI, PATHANAMTHITTA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAAKULAM. BY PUBLIC PROSECUTOR SHRI HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1878 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 16th day of June, 2009 O R D E R -------------- Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass and which is not prejudicial to him. 2. This revision is in challenge of judgment of learned Sessions Judge, Pathanamthitta in Crl. Appeal No.75 of 2007 confirming conviction of petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying the sentence. According to respondent No.1, petitioner owed Rs.50,000/- to him and for discharge of that liability issued Ext.P1, cheque dated 15.11.2004. That cheque on presentation was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.1 issued notice to petitioner intimating dishonour and demanding payment. Exhibits P4 and P6 are produced to show that notice was issued to the petitioner by registered post in his business address. Ext.P5 is the registered notice returned unclaimed. 3. So far as the transaction and execution of cheque are concerned respondent No.1 has given evidence as P.W.1. He states CRL. R.P. No.1878 of 2009 -: 2 :- that petitioner owed Rs.50,000/- to him and for the discharge of that liability issued the cheque. Contention raised by petitioner is that his friend, P.K.Madhu had pledged gold ornaments with respondent No.1 and taken a loan of Rs.10,000/- and at that time two signed blank cheques were taken from petitioner as security. Petitioner did not adduce evidence or bring out any circumstance to prove or probabilise that contention and on the other hand what was suggested to respondent No.1 when the latter was in the box is that petitioner had pledged gold ornaments with respondent No.1 and taken a loan and at that time, signed blank cheque was taken. Respondent No.1 denied that he had any business of lending money on security of gold ornaments. He claimed that he advanced loan of Rs.50,000/- to the petitioner. He also claimed that petitioner is a friend of his and it is accordingly that he happened to advance the money. Petitioner did not adduce any evidence in support of the contention he raised apart from making suggestion to respondent No.1 when the latter was in the box. Nothing is brought out in the evidence of respondent to discredit his version. That Ext.P1 contained the signature of petitioner and it is drawn on the account maintained by him are admitted. Going by the suggestion made to respondent No.1, petitioner is not disputing that he has transaction with respondent No.1. It is taking into account CRL. R.P. No.1878 of 2009 -: 3 :- all these facts, that courts below found in favour of respondent No.1 regarding due execution of cheque. There is little reason to interfere. Petitioner failed to rebut the presumption under Sec.139 of the Act. 4. Learned counsel contends that there is no evidence to show that statutory notice was served on petitioner. According to learned counsel, notice was issued in the business address of petitioner but by the time statutory notice was issued petitioner had closed down that business. Learned counsel took me to the evidence of respondent No.1 as P.W.1. But in cross-examination it was not even suggested to P.W.1 that notice was not served on the petitioner or that business establishment had been closed down by the time notice was issued. 5. I have gone through the evidence and statement of petitioner under Section 313 of the Code of Criminal Procedure made available by learned counsel. Evidence regarding issue of notice by registered post and the same being returned to respondent No.1 in spite of intimation given to the petitioner were specifically put to the petitioner. He merely denied the incriminating circumstances against him but did not contend that he did not close down the business or that intimation was not given to him. Going through the CRL. R.P. No.1878 of 2009 -: 4 :- judgments of the courts below it would appear that no contention was raised in the trial or appellate court as regards want of statutory notice. It is not disputed that business concern referred to in the notice belonged to the petitioner. His only contention is that it was not functioning during the relevant time for which there is nil evidence. I find from the memorandum of revision that there also, petitioner has described him in the address of his business place. Hence it is idle to contend that business establishment had been closed down and no intimation was given to the petitioner in that address. Exhibit P5 shows that intimation was given to the petitioner. That endorsement is made by the postman in discharge of his official duty. Hence until proved otherwise it must be presumed that the postman has discharged his duty regularly and properly. Under Section 27 of the General Clauses Act when a notice is sent in the correct address by registered post presumption is that it reached the addressee. Hence the contention regarding want of notice cannot stand. On going through the judgments under challenge I find no irregularity, illegality or impropriety in the findings entered by the courts below requiring interference. 6. Sentence of three months’ imprisonment and direction for payment of fine have been modified by the appellate court to simple CRL. R.P. No.1878 of 2009 -: 5 :- imprisonment till rising of the court and fine of Rs.50,000/- with default sentence. Having regard to the nature of offence and amount involved I find no reason to interfere with the sentence as modified by the appellate court. 7. Learned counsel requested four months' time to deposit the fine in the trial court. Cheque is dated 15.11.2004 and almost 4½ have now elapsed. However, considering the difficulties of the petitioner expressed by learned counsel and the amount involved I am inclined to grant three months to the petitioner to deposit the fine as ordered by the appellate court. Resultantly, this revision fails. It is dismissed. Petitioner is granted three months’ time from this day to deposit the fine in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on 18.9.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv