IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 Crl.Rev.Pet.No. 1914 of 2009() ------------------------------ CRA.565/2008 of CC.923/2005 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,PERUMBAVOOR .................... REVN. PETITIONER/APPELLAN/ACCUSED: ------------------------------ PAPPACHAN, AGED 48 YEARS, S/O. KORETH, EDASSERY HOUSE, PADUVAPURAM.P.O, EDAKKUNNU, ANGAMALY VIA. BY ADV. SRI.RAJESH VIJAYAN RESPONDENTS/RESPONDENTS/COMPLAINANT: -------------------------- 1. MARTIN, S/O. KURIAKOSE, PANJIKKARAN HOUSE, PADUVAPURAM.P.O, EDAKKUNNU, ANGAMALY VIA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, ERNAKULAM. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/06/2009, THE COURT ON 19/06/2009 PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1914 of 2009 --------------------------------------- Dated this 19th day of June 2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision. Heard counsel for petitioner and the Public Prosecutor who appeared for respondent No.2. Learned counsel submits that petitioner is only seeking time to pay the compensation ordered by the court below. This case arose on a complaint preferred by respondent No.1 alleging that petitioner committed offence punishable under Sec.138 of Negotiable Instruments Act (for short, “the act”). Case is that petitioner borrowed Rs.1,60,000/- from him and for repayment of that amount, issued cheque dated 09/05/05. That cheque was presented for encashment but it was returned for the reason that there was no sufficient funds in the account of petitioner. Respondent No.1 sent notice to the petitioner on 20/06/05. He alleged that notice was served on the petitioner but petitioner neither replied nor paid the amount. Respondent No.1 gave evidence as PW1 and proved Ext.P1 to P5. Ext.P1 is cheque dated 09/05/05 for Rs.1,60,000/-. Dishonor of that cheque for insufficiency of funds is proved by Ext.P2. Crl.R.P.No.1914 of 2009 2 Ext.P3 to P5 proved that notice was issued and served on the petitioner. Contention of petitioner is that he has no transactions with respondent No.1. He also claimed that he has not given any cheque to respondent No.1. When respondent No.1 was examined as PW1, he stated about the transaction and petitioner issuing the cheque to him. In cross examination he stated that he had not seen petitioner signing Ext.P1. He does not know that signature in Ext.P1 is that of petitioner. Learned magistrate found that due execution of the cheque is proved. Appellate court has confirmed that finding. It is true that respondent No.1 when examined as PW1 stated that he has not seen petitioner signing the cheque, but he claimed that petitioner handed over the cheque to him. It is not disputed that the cheque was drawn on the account maintained by the petitioner. Therefore, when respondent No.1 stated as PW1 that petitioner handed over the cheque to him there is no reason to think that cheque was not signed by the petitioner but by somebody else. The cheque handed over by the petitioner to the respondent No.1 on the account maintained by the former must be deemed to have been signed by himself. It is in Crl.R.P.No.1914 of 2009 3 view of that, the courts below found in favour of due execution of cheque. Petitioner has no satisfactory explanation as to how else the cheque happened to be in the custody of respondent No.1. Petitioner was not successful in rebutting the presumption under Sec.139 of the Act. On the contention regarding non-service of notice Ext.P3 and Ext.P4 show that notice was sent to the petitioner by registered post. Ext.P5 is the acknowledgment card. That is purported to be signed by the petitioner. It is not disputed that notice was sent in his correct address. The presumption is that when it is sent in the correct address it reached the addressee. There is no reason to discard Ext.P5. Thus courts below rightly found that statutory notice was served on the petitioner. On going through the judgments under challenge I do not find any reason to interfere with the conviction of the petitioner. Learned magistrate sentenced the petitioner to undergo simple imprisonment for a period of 6 months. Petitioner was directed to pay compensation of Rs.1,60,000/-. In default of payment simple imprisonment for 3 months was also provided. Appellate court modified the substantive sentence as simple imprisonment till arising of Crl.R.P.No.1914 of 2009 4 the court and fine of Rs.1,60,000/- with default sentence for 3months. There is no reason to interfere with the sentence as modified by the appellate court. Counsel for petitioner requested 4 months time to deposit the fine in the trial court. Learned counsel submitted that petitioner is placed in a difficult situation and hence he is unable to raise the amount within a short time. Having regard to the amount involved and the circumstances stated by learned counsel I am inclined to allow that request. Resultantly, this revision fails. It is dismissed. Petitioner is granted four (4) months time from this day to deposit fine in the trail court as ordered by the appellate court. In case of failure petitioner shall undergo simple imprisonment as ordered by the appellate court. Petitioner shall appear in the trail court on 22/10/09 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/