IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 Crl.Rev.Pet.No. 3165 of 2003(B) ------------------------------------------- [CRL.A.NO.500/2001 OF THE ADDITIONAL SESSIONS COURT, KOTTAYAM, DTD. 07/06/2003 ST.NO.46/2001 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM, DTD. 07/11/2011] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- K. ASOK NAMBIAR, PROPRIETOR, RESIDING AT SAI PACKERS 90 A AND 90 B( ON MTH ROAD), INDUSTRIAL ESTATE, AMBATUR VILLAGE, CHENNAI - 58. BY ADVS. SRI.K.JAGADEESCHANDRAN NAIR, SRI.J.KRISHNAKUMAR. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SMT. T.P. SABITHA, PROPRIETRIX, SARATH ENTERPRISES, DOOR NO.716/1, ARPOOKKARA EAST P.O., KOTTAYAM - 686 008, REPRESENTED BY HER POWER OF ATTORNEY HOLDER MR. A. SASIKUMAR. R1 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR, R2 BY ADVS. SRI.P.RAVINDRA BABU, SRI.GEORGE THOMAS RAMAPURAM. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/08/2011, ALONG WITH CRL.R.P.NO.3166/2003, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. N.K.BALAKRISHNAN, J. -------------------------------- Crl.R.P. Nos.3165 & 3166 of 2003 ----------------------------------------------- Dated this the 23rd day of August 2011 O R D E R These two revisions are directed against the conviction concurrently passed by the courts below for offence punishable under Sec.138 of the N.I.Act. The accused was sentenced in both cases to undergo S.I. for two months and to pay Rs.5,000/- each as fine. The appeals filed by the accused were dismissed by the learned Addl. Sessions Judge confirming the conviction and sentence passed against him. 2. Two cheques were issued by the accused; one for Rs.34,357/- and the other for Rs.46,471/-. It was alleged that the complainant had supplied packing case materials to the accused and towards the price of those materials, the accused owed the amount as aforesaid. When the cheques were presented for collection both cheques were returned dishonoured on the reason of insufficiency of fund. Statutory Crl.R.P. Nos.3165 & 3166 of 2003 -: 2 :- notices were sent in both the cases. The amounts were not paid by the accused. 3. The complainant was examined as PW1 and Exts.P1 to P17 were marked. On the side of the defence Ext.D1 copy of the letter was marked. 4. The learned Magistrate after analysing the entire evidence found that the cheques were issued in discharge of a legally enforceable debt/liability. Since the notices were sent by registered post, it has to be presumed that the notice was served on the accused or that it was refused by the addressee. There is no case for the accused that the notices were not sent in the correct address of the accused. Therefore, the presumption under Sec.27 of the General Clauses Act is applicable. The contention that no notice was sent within the time prescribed was rightly turned down by the courts below. It was contended by the defence that a sum of Rs.10,000/- was paid by him for which Ext.D1 was relied upon. The courts below did not accept the plea of discharge since it was found that there were other transactions also for which the accused Crl.R.P. Nos.3165 & 3166 of 2003 -: 3 :- was to pay the same. The fact that a suit was also filed by the complainant for realisation of the amount does not preclude the complainant from launching prosecution under Sec.138 of the N.I.Act. Thus after scrutinising the entire evidence the learned Magistrate found that the cheques in question were issued by the accused in discharge of a legally enforceable debt/liability. Since it was found that all the statutory requirements were duly complied with the accused was convicted and sentenced as mentioned above. 5. The learned Sessions Judge made a thorough reappraisal of the entire evidence and concurred with the findings entered by the trial court and dismissed the two appeals mentioned above. I find no reason to differ from the view taken by the courts below. The conviction is thus confirmed. The courts below sentenced the accused to undergo S.I. for three months and to pay fine of Rs.5,000/- each. It was directed that if the fine amount is realised, a sum of Rs.7,000/- shall be paid to the complainant. Since the counsel appearing for the accused as well as the complainant Crl.R.P. Nos.3165 & 3166 of 2003 -: 4 :- are absent, it could not be found that whether the suit filed by the complainant was decreed or whether the amount covered by the cheque had already been realised. In such circumstance, I find that sentence has to be modified to a certain extent. In the result, both Crl.R.Ps are disposed of as stated below:- The conviction is confirmed. In supersession of the sentence awarded by the courts below, the accused/revision petitioner is sentenced to undergo imprisonment till the rising of the court and to pay Rs.10,000/- each as fine and in default of payment of the same, the revision petitioner will undergo S.I. for one month each. If the fine amount is realised Rs.7,000/- each shall be paid to the complainant as compensation. N.K.BALAKRISHNAN, JUDGE. Jvt