IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3857 of 2009() ------------------------------ CRA.83/2008 of ADDL. SESSIONS COURT-II, THIRUVANANTHAPURAM ST.1590/2004 of CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM .................... REVN. PETITIONER/APPELLANT/2ND ACCUSED: --------------------------------------------------- S.MOHANA,W/O.LATE N.VASANTHASENAN, MOHANA VILLA,H.S.R.A.NO.A61,KULATHARA, KALADY,KARAMANA.P.O,THIRUVANANTHAPURAM. BY MR.M.SREEKUMAR, ADVOCATE RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------ 1. K.SAJEEV KUMAR,JALAJA BHAVAN, POONTHURA.P.O,THIRUVANANTHAPURAM. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN,J. ========================== Crl.R.P.No.3857 of 2009 ========================== Dated this the 11th day of December, 2009 ORDER The Chief Judicial Magistrate, Thiruvananathapuram in S.T.No.1590/2004 convicted the revision petitioner, who was the 2nd accused for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for three months and a fine of Rs.2,10,000/-(Rupees two lakh ten thousand only) with a default sentence of imprisonment for six months and to pay Rs.2,05,000/- out of fine, as compensation to the 1st respondent. In Crl.Appeal No.83/2008 the substantive sentence was reduced to imprisonment till rising of court. Fine was sustained. Default sentence was reduced to simple imprisonment for three months. The compensation to the first respondent was also sustained. Now this revision. 2. The learned counsel for the revision petitioner submitted that the prosecution is bad for want of notice. The evidence on record would show that when Ext.P1-Cheque was dishonoured for insufficiency of fund, notice demanding discharge of the liability was sent, but it was returned. According to the learned counsel, in effect, there is no notice. Crl.R.P.No.3857/2009 2 Therefore, the prosecution is vitiated. The evidence on record would show that the notice was duly addressed and postage was prepaid. It was returned undelivered with endorsement 'unclaimed'. There is no case for the revision petitioner that the notice was returned by the postman at the instance of the first respondent. According to the learned counsel, non examination of the postman is fatal to the prosecution. So long as there is no evidence on record to show that the address shown in the notice was wrong and that there was any intervention by the first respondent in discharge of the duties of the postman, it had to be presumed that the postman, in discharge of the official duties, acted in good faith and that the endorsement was made in discharge of the official duties. From the endorsement in Ext.P5, it had to be inferred that the letter was offered to the revision petitioner by the postman. But, the revision petitioner didn't accept. Hence it was returned. In the above circumstances, due credence has to be given to the endorsement on the notice. In this view of the matter, the courts below had correctly concluded that there is constructive notice and the prosecution is not at all vitiated. As regards the other evidence or concurrent findings of Crl.R.P.No.3857/2009 3 the courts below on other facts, no argument was advanced by the learned counsel. Regarding the liability, delivery of cheque, dishonour of cheque and notice demanding discharge there is sufficient evidence. There is no reason to interfere with the concurrent findings. The revision petitioner has no other good defence. Offence u/s.138 of the Negotiable Instruments Act is established. Therefore, I find no reason to interfere with the conviction under challenge. 3. The Appellate Court was very lenient in reducing the substantive sentence to imprisonment till rising of the court. The fine and the compensation awarded are quite appropriate. No interference with the sentence is warranted. In the result, the revision petition is devoid of merit and accordingly it is dismissed. The revision petitioner is granted six months time to pay the compensation. Till then, the bail bond executed by her shall remain in force. P.S.GOPINATHAN, JUDGE. dvs