IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 CRL.REV.PET.NO. 1621 OF 2009() ----------------------------------------------- CRA.839/2007 OF ADDL.SESSIONS COURT-III, KOZHIKODE ST.1230/2006 OF JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: --------------------------------------------------------------------- IBRAHIM, S/O. MARAKKAR, PALAKAMTHODUKAYL HOUSE, KAKKAVAYAL, PUDUPPADY VILLAGE, KOZHIKODE DIST. BY ADV. SRI.VINOD SINGH CHERIYAN SRI.R.SUDHISH RESPONDENT(S) - RESPONDENTS - COMPLAINANT & STATE: ---------------------------------------------------------------------------------------- 1. K.K. SADIRI, S/O.MAMMU, VENCHERY HOUSE, KAITHAPOYIL, PUDUPPADY VILLAGE, KOZHIKODE DIST. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, AT ERNAKULAM. SRI.K.A.SALIL NARAYANAN FOR R1 BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1621 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of May, 2009 O R D E R -------------- Respondent No.1 appears through counsel. Heard counsel for petitioner and Public Prosecutor. 2. Concurrent findings entered by the courts below as to the due execution of cheque for discharge of legally enforceable debt/liability, failure of petitioner to rebut the presumption under Section 139 of the Negotiable Instruments Act and that notice of dishonour demanding payment of amount issued to the petitioner was returned by him as unclaimed, are sought to be unsettled in this revision at the instance of the petitioner. Learned counsel for petitioner contends that due execution of cheque is not proved. According to respondent No.1 petitioner received Rs.1,02,000/- on 10.1.2006 agreeing to arrange Visa for his son, petitioner failed to do so and in the mediation that followed petitioner executed Ext.P6, agreement dated 21.2.2006 agreeing to repay the amount. For the discharge of that liability petitioner issued Ext.P1, cheque dated 10.4.2006. Dishonour of that cheque for insufficiency of funds is proved by Ext.P2. Petitioner contended that there was no transaction involving him and respondent No.1. But it is not disputed that Exts.P1 CRL. R.P. NO.1621 OF 2009 -: 2 :- and P6 contained his signatures. Due execution of cheque is proved by the evidence of respondent No.1 as P.W.1. There is reference in Ext.P6 about the transaction culminating in Ext.P1, cheque. Courts below accepted the evidence of respondent No.1 and found in favour of due execution of cheque. Petitioner has not attempted to rebut the presumption under Sec.139 of the Act. 3. Another contention advanced is that there is no proper service of notice. According to respondent No.1 notice was issued to the petitioner in his last known address. Exhibit P3 is the office copy of the notice. Exhibit P4 is the postal receipt for sending the notice by registered post. Notice was returned unclaimed with the endorsement that addressee left India on 11.5.2006. Courts below found that notice was issued on 8.5.2006 and even as per the endorsement on Ext.P8 petitioner left India only on 11.5.2006. Responsibility of respondent No.1 is to send notice in the last known address of the petitioner which he has done. Assuming that petitioner left India on 11.5.2006 it was his responsibility either to provide his correct address to respondent No.1 or to make every arrangements to receive correspondence in his absence. When that was not done, petitioner cannot contend that there is no proper service of notice. That contention has to fail. CRL. R.P. NO.1621 OF 2009 -: 3 :- 4. So far as the sentence is concerned, learned Magistrate imposed six months’ simple imprisonment with direction to deposit Rs.1,10,000/- as compensation and providing default sentence for two months. Appellate court modified the sentence to simple imprisonment till rising of the court and converted compensation as fine. 5. There is little reason to interfere with the substantive sentence awarded to the petitioner. So far as the latter part of the sentence as modified by the appellate court is concerned the appellate court has converted compensation into fine with the default sentence. That can be converted as compensation payable to respondent No.1. Resultantly, this revision is allowed in part in the following lines: (i) Instead of fine as awarded by the appellate court, petitioner shall deposit in the trial court for payment to respondent No.1 Rs.1,10,0000/- as compensation under Section 357(3) of the Code of Criminal Procedure within two months from this day, failing which he shall undergo simple imprisonment for two months. (ii) It is made clear that it shall be CRL. R.P. NO.1621 OF 2009 -: 4 :- sufficient compliance of the above direction if petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the said period two months. (iii) In case petitioner has deposited any amount in any of the courts below, that shall be adjusted towards compensation directed to be paid hereby. Petitioner shall appear in the trial court on 28.7.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv