IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 Crl.Rev.Pet.No. 1862 of 2009() ------------------------------ CRA.47/2008 of ADDL.SESSIONS COURT-I, MAVELIKKARA ST.143/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II, HARIPAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- V.V.UDAYAKUMAR, S/O.VISWAMBHARAN, INDEEVARAM VEETTIL, FROM VISWABHAVANAM, PADANILAM P.O., NOORANADU VILLAGE. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SRI.B.BIPIN RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MEENAKSHI, D/O.KUTTY, CHANGAYIL SITHARAYIL. THEKKE MANKUZHIYIL, PULLIKKANAKKU P.O., BHARANIKKAVU VILLAGE. PUBLIC PROSECUTOR SHIR JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1862 of 2009 -------------------------------------- Dated this the 15th day of June, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to her. 2. This revision is in challenge of judgment of learned Additional Sessions Judge-I, Mavelikkara in Crl.Appeal No.47 of 2008 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). 3. According to respondent No.2, petitioner borrowed Rs.1,00,000/- from her on 9.8.2005 and for the discharge of that liability issued Ext.P1, cheque dated 9.2.2006. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. On getting dishonour intimation, respondent No.2 issued notice to the petitioner intimating dishonour and demanding payment. Respondent No.2 produced Exts.P3 to P5 in proof of issue and service of notice. She gave evidence as PW1 and testified to her case. According to the petitioner, he had not borrowed any amount or issued the cheque in question. Instead, he had a chitty transaction with respondent No.2 and given signed blank cheque as security. Courts below were not impressed by that version of petitioner and found in favour of due execution of the cheque. Crl.R.P.No.1862/2009 2 4. There is no challenge to the finding that the cheque was dishonoured for insufficiency of funds. Petitioner has a contention regarding service of notice to which I will refer a bit later. 5. It is not disputed, and is proved by PW1 that Ext.P1, cheque contained the signature of petitioner and it is drawn on the account maintained by him. Though petitioner admitted his signature that does not tantamount to admission or proof of due execution. Petitioner does not dispute that he handed over cheque in question to respondent No.2 though, according to him in connection with a chitty transaction as security. Petitioner was not able to prove or probabilise the circumstances under which according to him, the cheque leaf came to the hands of respondent No.2. What is available is only some suggestions to respondent No.2 which she denied. Nothing is brought out to disbelieve the evidence of respondent No.2. Courts below in these circumstances are justified in holding that petitioner issued the cheque in question for discharge of a legally enforceable debt/liability and that he failed to rebut the presumption under Section 139 of the Act. 6. Another contention advanced is that there was no service of notice on petitioner. He stated that house name stated in the notice is not correct. Exts.P3 and P5 show that notice was sent to the petitioner by registered post. Ext.P4, acknowledgment card shows that registered notice was served on petitioner. Now contention raised is that house name stated in the notice is not correct. What is contended by petitioner is that he had disposed of the house by name 'Indeevaram' mentioned in the notice much before filing of the complaint. Crl.R.P.No.1862/2009 3 There is however no evidence in that line. On the other hand I find that even in the memorandum of revision and appeal that house name is used by the petitioner. Ext.P4 shows that notice was served on petitioner in his address with the house name as 'Indeevaram' . Under Section 27 of the General Clauses Act there is a presumption that when a notice is sent by registered post in correct address, it reached on the addressee. On going through the judgments under challenge I do not find reason to interfere with the conviction of petitioner. 7. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and pay Rs.1,00,000/- as compensation. In default of payment of compensation, petitioner was directed to undergo simple imprisonment for one month. Appellate court confirmed the conviction as well as the direction for payment of compensation with default sentence. Learned counsel requested that leniency may be shown to the petitioner in the matter of sentence. Considering the nature of offence committed and facts and circumstances I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason or scope for interference with the direction for payment of compensation. Since substantive sentence has been modified as simple imprisonment till rising of court, petitioner has to undergo simple imprisonment for three months in case of non-payment of compensation. 8. Learned counsel requested four months' time to deposit compensation in the trial court. He stated that petitioner is in financial difficulties and is unable to raise the amount in lump immediately. Considering the facts Crl.R.P.No.1862/2009 4 and circumstances of the case and the amount involved, petitioner is granted four months' time to deposit compensation in the trial court. Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is granted four months' time to deposit compensation as ordered by the learned magistrate in the trial court. In case of default, he shall undergo simple imprisonment for three months. iii. It is made clear that it will be sufficient compliance with the direction for payment of compensation if petitioner paid the compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through her counsel acknowledging receipt of the compensation within the aforesaid time. iv. Petitioner shall appear in the trial court on 19.10.2009 to receive the sentence. Crl.M.A.No.5637 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks