IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 Crl.Rev.Pet.No. 2162 of 2009() ------------------------------ CRA.840/2007 of SESSIONS COURT, KOTTAYAM ST.110/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, CHANGANACHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SAINUDEEN, H.C.NO.4393, MUNDAKKAYAM POLICE STATION, MUNDAKKAYAM, KOTTAYAM. BY ADV. SRI.P.KURUVILLA JACOB RESPONDENT(S): RESPONDENTS/STATE AND COMPLAINANT ------------------------------------------------ 1. P.S.SUSEELA, SREENIKETHAN HOUSE, RAILWAY STATION ROAD, CHANGANACHERRY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2162 of 2009 -------------------------------------- Dated this the 6th 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 her. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Kottayam in Crl.Appeal No.840 of 2007 confirming conviction but modifying sentence imposed on petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.1 filed a private complaint alleging that petitioner borrowed Rs.2.50,000/- from her and for repayment of that amount issued Ext.P1, cheque dated 2.5.2005 That cheque on presentation was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.1 issued statutory notice to the petitioner on 20.5.2005 intimating dishonour and demanding payment of the amount. Issue of notice to the petitioner by registered post is proved by Exts.4 to P5. Respondent No.1 gave evidence as PW1. She stated that petitioner is working with her sister’s husband in a police station and that it was for completing his house construction that he borrowed the amount from her. According to the petitioner, he had no transaction with respondent No.1 and he lost a signed blank from his possession. He intimated his bank about the Crl.R.P.No.2162/2009 2 missing of the cheque on time. He also claimed that there was no service of notice on him. 3. So far as service of notice is concerned, Ext.P6 is the acknowledgment card dated 25.5.2005. There is no dispute that notice was issued to the petitioner in his correct address. When notice is sent by registered post in correct address it must be presumed to have reached the addressee. Ext.P6 shows that petitioner accepted the notice. Hence his contention that he was not served with notice cannot be accepted. 4. On the question of execution of the cheque there is evidence of respondent No.1. Petitioner merely contended that he lost the signed blank cheque from his possession. It is not disputed that petitioner is a police constable. If the cheque was lost, petitioner would have certainly taken action. Though he claimed that he informed the bank about missing of the cheque, there is no evidence. Petitioner was not successful in proving that he lost the cheque and respondent No.1 stealthily took possession of it. Nothing is brought out to disbelieve evidence of respondent No.1. There is no reason to interfere with the finding of the courts below regarding execution of the cheuqe for discharge of a legally enforceable debt/liability and service of notice on petitioner. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and directed him to pay Rs.2,50,000/- as compensation to respondent No.1. There was also a default sentence of simple imprisonment for one month. Appellate court modified the substantive Crl.R.P.No.2162/2009 3 sentence as simple imprisonment till rising of the court. Instead of compensation petitioner was directed to pay fine of Rs.2,50,000/- and in default of payment, to undergo simple imprisonment for two months. It was directed that fine if realized will be paid to respondent No.1 as compensation. Having regard to the nature of offence and the amount involved there is no reason to interfere with the sentence as modified by the appellate court. 6. Learned counsel submits that petitioner is in financially difficult situation unable to raise money immediately and requested four months’ to deposit fine. Having regard to the circumstances stated by learned counsel and the amount involved I am inclined to allow the request for time. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted four months’ time from today to deposit fine in the trial court as ordered by the appellate court and in default of payment, he shall undergo default sentence ordered by the appellate court. Petitioner shall appear in the trial court on 9.11.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 9.11.2009. THOMAS P.JOSEPH, Judge. cks