IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 Crl.Rev.Pet.No. 3895 of 2009() ------------------------------------------- CRA. 1060/2008 OF ADDL. DISTRICT & SESSIONS COURT(ADHOC III), N.PARAVUR. ST. NO.1807/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA. ............. REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------- SYAMKUMAR, AGED 38 YEARS, S/O. BALAN, SHAMJI GARDEN, N.KUNTHIYATHODE.P.O., KANAKKANKADAVU, PUTHENVELIKKARA VILLAGE, PARAVUR TALUK. BY ADVS.MR.J.JULIAN XAVIER MR.FIROZ K.ROBIN RESPONDENT(S): COMPLAINANT -------------------------- 1. P.R.SASI, S/O. RAMAN, PERIKKATHIL HOUSE, MEKKAD.P.O. (DIED) REP. BY HIS WIFE KUMARI,DO..DO.. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.S.Gopinathan, J. ========================================== Crl.R.P.3895 of 2009 ========================================== Dated this the 23rd day of December, 2009. ORDER 1.The revision petitioner was convicted by the Judicial Magistrate of the First Class-I, Aluva in S.T.No.1807 of 2004 on his file for offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for six months and to pay Rs.2,90,000/- as compensation with default clause to undergo simple imprisonment for sixty days. In Crl.A.1060/08, the Additional Sessions Judge (Ad- hoc)-III, North Parur, by judgment dated 14.10.2009, confirmed the conviction and sentence. Now this revision. 2.Having heard the learned counsel for the revision petitioner, who had taken me through the evidence of P.W.1 and perusing the judgment of the courts below, I find that the wife of the deceased CRRP3895/09 -:2:- complainant, who was examined as P.W.1, had succeeded to establish that the revision petitioner borrowed a sum of Rs.2,90,000/- from the deceased complainant and in discharge of the liability, Ext.P1 cheque dated 13.3.2004 for the said amount drawn on Corporation Bank, Angamaly branch was issued and that when presented for collection through the Union Bank of India, Athani branch, it was dishonoured for insufficiency of funds, as evidenced by Exts.P2 and P3 memos. Though a lawyer notice, copy of which was marked as Ext.P4 was caused demanding discharge of the liability, it was returned unclaimed. The liability was not discharged. 3.The revision petitioner took up a defence that the cheque in dispute was handed over to one Bose and that the transaction was settled. But the cheque was not returned by Bose. In support of the defence version, the revision petitioner had CRRP3895/09 -:3:- given evidence. The learned counsel for the revision petitioner had advanced an argument that deceased complainant had no capacity to pay that much amount and in that circumstance, the existence of a legally recoverable debt is not a matter of presumption under Section 139 of the Negotiable Instruments Act. In support of the argument, the learned counsel had relied upon the dictum laid down by the Apex Court in Krishna Janardhan Bhat v. Dattatraya G.Hegde [(2008 (1) K.LT. 425 (SC)]. Going by the evidence of P.W.1, I find that P.W.1 had satisfactorily explained the source of income, which was not in fact challenged. Neither there is any suggestion to P.W.1 that the complainant, who was the husband of P.W.1, has no source to pay the amount. The evidence of P.W.1 remains unimpeached. In the light of the unimpeached evidence of P.W.1, the defence version even does not advance preponderance of probability. The ratio of the CRRP3895/09 -:4:- above decision is not applicable to the case on hand. Though the revision petitioner had got a case that the cheque was issued to one Bose as regards another transaction and that was settled, there is no supporting evidence other than oath against oath. The veracity of the testimony of P.W.1 could not be shaken in cross-examination. The testimony of the revision petitioner as D.W.1 could not rebut the presumptions in favour of the complainant. It is in the above circumstance, the courts below had believed the testimony of P.W.1 to arrive at a finding in favour of the complainant that Ext.P1 was issued in discharge of existing liability. The fact that Ext.P1 was dishonoured is in fact not disputed. There is no case for the revision petitioner that he had sufficient funds in his account to honour the cheque. 4.The learned counsel had also advanced a CRRP3895/09 -:5:- contention that since the notice was returned, there is no statutory notice and the prosecution is vitiated for want of notice. The courts below had considered the contention advanced by the revision petitioner and found that Ext.P5 returned notice was duly addressed and duly stamped. The postman had taken the notice to the revision petitioner on one occasion and since he was absent it was taken back and on another occasion it was endorsed that the notice returned as unclaimed. There is no material on record to show that the first respondent or her husband had anyway interfered with the due discharge of duties by the postman. There is little material to show that the postman had made endorsement with any ulterior motive. In the above circumstances, it is to be presumed that the postman had discharged his duties in good faith and the endorsement made on Ext.P5 is also in good faith. There is no reason to reject the CRRP3895/09 -:6:- endorsement on Ext.P5. Hence, the courts below were justified in arriving at a conclusion that there was constructive notice. There is substantive compliance of the statutory requirements. The conviction is based upon cogent evidence and is not liable to be interfered with in exercise of the revisional powers. 5.Taking note that the the business of the revision petitioner ended in failure and that the financial difficulties led him to face the prosecution, I find that he is entitled to a little leniency in sentence and that a sentence of imprisonment till rising of the court with a fine of Rs.2,90,000/- would meet the ends of justice. In the result, this revision petition is allowed in part. While confirming the conviction, the CRRP3895/09 -:7:- substantive sentence is reduced to imprisonment till rising of the court and a fine of Rs.2,90,000/-. In default of payment of fine, the revision petitioner shall undergo simple imprisonment for six months. The revision petitioner is granted six months’ time to pay the fine. Till then, the bail bond executed by him shall remain in force. P.S.Gopinathan, Judge. sl.