IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 CRL.REV.PET.NO. 1853 OF 2009() ----------------------------------------------- CRA.455/2008 OF SESSIONS COURT, KOTTAYAM ST.200/2007 OF JUDL. MAGISTRATE OF FIRST CLASS, CHENGANACHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------------------- MAJEED, SHAMEENA MANZIL, Y.M.C.A.ROAD, CHANGANACHERRY, SOLE PROPRIETOR, SAFA PLYWOOD INDUSTRIES, NEAR N.S.S.H.S., KUZHIMATTOM P.O., KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------------------------------- 1. LOUIS THOMAS, ATTICHIRIYIL HOUSE, NEAR S.B.COLLEGE, CHANGANACHERRY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1853 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of June, 2009 O R D E R -------------- Public Prosecutor takes notice for respondent No.1. 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 him. 2. Petitioner is aggrieved by the judgment of learned Sessions Judge, Kottayam in Crl. Appeal No.455 of 2008 and challenging its legality, regularity or propriety petitioner has come up in revision. Respondent No.1 preferred complaint against petitioner alleging that he borrowed Rs.1,25,000/- from respondent No.1 and for discharge of that liability issued Ext.P1, cheque dated 31.8.2005. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment. That, statutory notice was issued by registered post in the correct address of petitioner but it was returned unclaimed is proved by Exts.P4 to P7. Respondent No.1 gave evidence as P.W.1 and claimed that petitioner borrowed Rs.1,25,000/- from him and issued the cheque in discharge of that liability. Petitioner claimed, when questioned under Section 313 of the Code of Criminal Procedure (for short, “the Code”) that he gave a CRL. R.P. No.1853 of 2009 -: 2 :- blank signed cheque as security when he purchased an autorikshaw from respondent No.1. He did not adduce any evidence in that line. Courts below found in favour of due execution of cheque. That finding is under challenge in this revision. 3. Respondent No.1 stated in his evidence that he is engaged in the business of purchase and sale of autorikshaws since 25 years and that petitioner who is his neighbour borrowed Rs.1,25,000/- from him in January, 2005 in connection with the marriage of his daughter. When he demanded repayment petitioner issued the cheque. As against that petitioner contended when questioned under Section 313 of the Code that he handed over a signed blank cheque to respondent No.1 in connection with purchase of an autorikshaw. But it is seen from the judgments under challenge that when respondent No.1 was in the box, it was suggested on behalf of petitioner that there was some money transaction between petitioner and respondent No.1 and in connection with that, a signed blank cheque was given as security. None of these contentions are proved or probabilised by the petitioner. It is admitted that petitioner handed over the cheque in question drawn on the account maintained by him to respondent No.1 in connection with the transaction he had with respondent No.1. So far as borrowal is concerned, respondent CRL. R.P. No.1853 of 2009 -: 3 :- No.1 given evidence. He stated so in Ext.P4, (copy of) notice issued to petitioner. It is seen from Ext.P7 that in spite of getting intimation about the registered notice petitioner did not claim it. Notice was sent to the petitioner in his correct address. Responsibility of the respondent was to send the notice in the correct address of the petitioner which he has done. Presumption is that when registered notice is send in the correct address it reached the addressee. Apart from that endorsement on Ext.P7 would also show that petitioner was intimated about the notice. That, he did not claim the notice indicate that he was aware of the claim being made by respondent No.1. Nothing is brought out to disbelieve evidence of respondent No.1 as to the transaction which culminated in Ext.P1. In these circumstances courts below are justified in holding in favour of respondent No.1 regarding due execution of cheque. Petitioner failed to rebut the presumption under Sec.139 of the Act. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay fine of Rs.1,25,000/-. Default sentence of one month was also provided. It was directed that fine if realised shall be paid to respondent No.1 under Sec.357(1) of the Code. In appeal substantive sentence was modified as simple imprisonment till rising of the court CRL. R.P. No.1853 of 2009 -: 4 :- and default sentence of three months was provided for non-payment of fine. I do not find reason to interfere with the sentence as ordered by the appellate court. 5. Learned counsel requested six months' time to deposit the fine in the trial court. It is submitted that petitioner would find it difficult to raise the amount unless he is granted some breathing time. Considering the circumstances stated by learned counsel and amount involved, I am inclined to grant four months' time to the petitioner to deposit the fine in the trial court. Resultantly, this revision fails. It is dismissed. Petitioner is granted four months' time from this day to pay the fine in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on 14.10.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv