IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 Crl.Rev.Pet.No. 717 of 2001() ---------------------------------------- CRA.91/1999 of ADDL. SESSIONS COURT, ALAPPUZHA CC.224/1997 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... REVN. PETITIONER/APPELLANT/ ACCUSED ---------------------------- K.B.SHAJI, KANIYAMPARAMBIL VEEDU, CHATHURTHYAKARI P.O., MANCOMPU, ALAPPUZHA. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT/RESPONDENT/COMPLAINANT AND STATE --------------------- 1. P.T.VARGHESE, PATHIL HOUSE, CHATHURTHYAKARI P.O., MANCOMPU, ALAPPUZHA. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.C.K.SAJEEV FOR R1 BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. NO.3384/2001 IN CRL.RP. NO.717/2001 DISMISSED 17/09/2008 SD/- THOMAS P.JOSEPH, JUDGE /TRUE COPY/ P.A. TO JUDGE tss THOMAS P. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 717 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September, 2008 O R D E R Revision petitioner against whom concurrent finding of fact is made by the courts below that he issued Ext.P1, cheque dated 31.05.97 for the discharge of debt to the tune of Rs.30,000/-, the cheque was dishonoured for insufficiency of funds and that in spite of the dishonour intimation and demand he did not pay the amount and thereby committed the offence punishable under Section 138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months and payment of compensation for Rs.24,000/-, has come up in revision. 2. Heard the learned counsel for the revision petitioner, 1st respondent and the Public Prosecutor. The learned counsel submitted that the concurrent finding entered by the courts below are erroneous and at any rate, the sentence is excessive. 3. So far as the alleged execution of Ext.P1, cheque is concerned, the 1st respondent has evidenced as PW1. According to the revision petitioner, the cheque in question somehow happened to Crl.R.P. No. 717/01 -:2:- be in the custody of 1st respondent. Courts below considered the evidence of 1st respondent in the light of the defence pleaded by the revision petitioner and found in favour of the due execution of the cheque. There is little reason to interfere with that finding. 4. Though notice of dishonour was issued to the revision petitioner, it was returned as unclaimed. PW2, the postman was examined to say that the notice was tendered to the revision petitioner. When the notice is sent by registered post in the correct address, in the normal course of the postal business that notice would be delivered to the addressee. After all, the obligation of the 1st respondent is only to send the notice in the correct address which he has done. The evidence of PW2 shows valid tender of notice to the revision petitioner. In the facts and circumstances and in the light of the evidence on record, the conviction of the revision petitioner is unassailable. 5. Turning to the sentence awarded to the revision petitioner, the learned counsel submitted that the imprisonment may be avoided. He submitted that during the trial of the case Rs.6,000/- was paid to the 1st respondent the receipt of which is acknowledged Crl.R.P. No. 717/01 -:3:- by the 1st respondent also and taking note of which, compensation payable was limited to Rs.24,000/-, though the cheque was for Rs.30,000/-. Learned counsel submitted that as per the order of this court, Rs.15,000/- has been deposited in the trial court. 6. Considering the nature of the offence and the object of the legislation, I am satisfied that simple imprisonment till the rising of court is sufficient in the ends of justice. At the same time, the 1st respondent has to be duly compensated. As pointed out by the learned counsel for the 1st respondent, the transaction was on 31.05.97, and the 1st respondent initiated prosecution against the revision petitioner in the year 1997. It was only in the year 1987 that Rs.6,000/- was paid to the 1st respondent. Taking these aspects into account, the revision petitioner has to pay compensation of Rs.26,000/- to the 1st respondent. The revision petition is therefore allowed in part in the following terms: i) The substantive sentence imposed on the revision petitioner is modified as simple imprisonment till the rising of the court. ii) The revision Petitioner is directed to deposit in the trial Crl.R.P. No. 717/01 -:4:- court within two months from this day Rs.26,000/- (Rs.Twenty six thousand only) for payment to the 1st respondent as compensation, failing which he shall undergo simple imprisonment for two months. iii) The amount, if any, deposited by the revision petitioner in the trial court as per the order of this court will be adjusted in the compensation fixed hereby iv) The revision petitioner shall surrender in the trial court on 22.10.08, to receive the sentence. THOMAS P. JOSEPH, JUDGE ttb