IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 Crl.Rev.Pet.No. 2143 of 2009() ------------------------------ CRA.759/2008 of ADDL.SESSIONS JUDGE (ADHOC-II), ERNAKULAM CC.2357/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- E.R.NITIN, EYYANI HOUSE, CHERAKKARA.P.O., THALIKKULAM THRISSUR. BY ADV. SRI.K.A.JALEEL RESPONDENT(S): /RESPONDENTS/COMPLAINANT AND STATE ------------------------------------ 1. ESQUARE MARKETING DOOR NO.39/1645 GEOUND FLOOR, ARJUN CHAMBERS, KALATHIPARAMBIL CROSS ROAD,CALANJAMBALAM, ERNAKULAM. KOCHI-16. REP. BY ITS MANAGING PARTNER, MANZOOR SHAMS, RESIDING AT 62/2080, DESHABHIMANI ROAD, ERNAKULAM KOCHI-17. 2. STATE OF KERALA REP. BY THE STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2143 of 2009 -------------------------------------- Dated this the 9th day of July, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to it. Public Prosecutor takes notice for respondent No.2. 2. Judgment of learned Additional Sessions Judge (Adhoc-II), Ernakulam in Crl.Appeal No.759 of 2008 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) is under challenge in this revision. Respondent No.1 is a partnership firm represented by PW1, its managing partner. According to respondent No.1, petitioner purchased foot wear items from it on credit basis for Rs.1,20,000/- and for discharge of that liability issued Ext.P1, cheque dated 1.9.2003 That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. Issue of statutory notice to the petitioner by registered post is proved by Exts.P3 and P4. It is seen from Ext.P5 that the registered notice was returned unclaimed on 6.10.2003. It is not disputed that notice was issued to the petitioner in his correct address. Endorsements on Ext.P5 are not shown to be incorrect. Hence there is deemed service of notice on petitioner. PW1 gave evidence on behalf of respondent No.1 regarding transaction and execution of the cheque (Ext.P1). Petitioner Crl.R.P.No.2143/2009 2 contended that he had purchased footwear items from respondent No.1 on 30.1.2003 for a total sum of Rs.81,549/- and the consignment was booked for delivery to him through a parcel agency. That consignment did not reach petitioner and he learnt that movement of the consignment was blocked by respondent No.1 on account of some difference between it and parcel agency. Petitioner filed an application in the trial court to direct respondent No.1 to produce the relevant bill book. Accordingly respondent No.1 produced Exts.P6 series and P7 series. Ext.P6(a) and Ext.P7(a) are the relevant entries. Petitioner gave evidence as DW1 and proved Exts.D1 and D2. Ext.D1 is the copy of the consignee copy of way bill given to the petitioner and Ext.D2, cash/credit bill dated 30.1.2003. It is contended that no amount as stated in Ext.P1 was due to respondent No.1. 3. Petitioner does not dispute that as per Ext.D1 dated 30.1.2003 he had purchased footwear items from respondent No.1 for Rs.81,549/-. That transaction is referred to in Ext.P6(a). One dispute is that the said consignment did not reach the petitioner. Courts below observed that as per Clause (5) of Ext.D1, petitioner was to surrender the original way bill for taking delivery of the consignment which indicated that the original way bill was given to the petitioner but he did not produce the same in the courts below which indicated that he had taken delivery of the consignment on the strength of the original way bill. Petitioner could have obtained a certificate from the carrier to show that the consignment could not be delivered to him for whatever reason it may be. There is no sufficient evidence to show that the consignment was not delivered to Crl.R.P.No.2143/2009 3 petitioner as he claimed. 4. Ext.P7 series show that on 28.3.2003 petitioner purchased foot wear items from respondent No.1 for Rs.23,785./- and again on 31.3.2003 for Rs.15,390/-. That amount taken along with the admitted sum of Rs.81,549/- brought the total amount payable to Rs.1,20,724/-. Ext.P1, the cheque is for Rs.1,20,000/-. According to learned counsel, PW1 stated in his evidence that petitioner purchased footwear items in June and July, 2003 but Ext.P6 series and Ext.P7 series show that transaction was in January and March, 2003. I must bear in mind that when PW1 stated so Exts.P6 series and P7 series were not before him. A mistake regarding the month of transaction in the circumstances cannot defeat his claim. Evidence shows that it was in partial discharge of liability to the tune of Rs.1,20,724/- that cheque for Rs.1,20,000/- was issued. I do not find reason to interfere with the finding of the courts below in that regard. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and directed payment of fine of Rs.1,65,000/-. A default sentence of simple imprisonment for one month was also provided. Appellate court modified the substantive sentence as simple imprisonment till rising of the court and while retaining the default sentence, modified the amount of fine payable as Rs.1,20,000/- with a direction that the fine if realized will be paid to respondent No.1 as compensation. There is no reason to interfere with the sentence as modified by the appellate court at the instance of the petitioner. 6. Learned counsel for petitioner requested that petitioner may be Crl.R.P.No.2143/2009 4 granted three months’ time to deposit fine in the trial court. Learned counsel says that petitioner is in financially difficult situation and is unable to raise the amount immediately. Considering the circumstances stated by learned counsel and the amount involved petitioner is granted three months’ time from today to deposit fine in the trial court. Resultantly, this revision fails. It is dismissed. Petitioner is granted three months’ time from today to deposit fine in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on 12.10.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks