IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 Crl.Rev.Pet.No. 2154 of 2009() ------------------------------ CRA.766/2003 of ADDL.SESSIONS JUDGE (ADHOC-II), THALASSERY STC.2167/2003 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.ASOKAN, S/O.KRISHNAN, AGED 45 YEARS, KUNNUMMAL HOUSE, CHAMPAD P.O., KANNUR DISTRICT. BY ADV. SRI.CIBI THOMAS RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE ---------------------------------- 1. SURESH BABU.V., S/O.VASU, AGED 30 YEARS, RESIDING AT ALAMBATH HOUSE, PARAMKUNNU, KADIRUR, KANNUR DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISNNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2154 of 2009 -------------------------------------- Dated this the 7th 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 and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of concurrent finding entered by the courts below as to the due execution of a cheque by the petitioner for discharge of a legally enforceable debt/liability. On a complaint preferred by respondent No.1 petitioner faced trial in the court of learned Additional Chief Judicial Magistrate, Thalassery in S.T.No.2167 of 2003 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.1 claimed that petitioner borrowed Rs.50,000/- from him on 1.10.2002 and for repayment of that amount issued Ext.P1, cheque dated 1.1.2003. 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 of the amount. Notice was returned unclaimed on 27.3.2003. Ext.P4 is the office copy of notice and Ext.P5, the returned notice. Respondent No.1 gave evidence as PW1 and stated to his case. According to the petitioner he had borrowed Rs.17,000/- from Advocate Syamaprasad and given signed blank cheque to him and that cheque was misused. He denied Crl.R.P.No.2154/2009 2 that that he was given intimation about the registered notice and to prove that, examined DW1, the postman. 3. Dishonour of the cheque for reason above stated is proved by Exts.P2 and P3. Exts.P4 and P5 show that notice was issued to the petitioner by registered post in his correct address. As per the endorsement on Ext.P5, notice was returned unclaimed on 27.3.2003. DW1, postman stated that intimation was given to the addressee (petitioner) at his house though not personally. He stated that on matters in which intimation was given to the addressee, the registered notice will be kept in the postoffice for a week and then it will be returned with the endorsement 'uncliamed'. In this case notice was sent in the correct address. As per Section 27 of the General Clauses Act when a notice is sent in the correct address by registered post it must be presumed to have reached the addressee. It is for the address to make arrangement to receive the correspondence in his absence. In this case evidence of DW1 shows that intimation was given at the residence of the petitioner. It is for the petitioner to make arrangements to receive the notice. Obligation of respondent No.1 is only to send the notice in the last known correct address. That obligation has been discharged by respondent No.1. Hence the contention that there was no proper notice cannot be accepted. 4. So far as due execution of the cheque is concerned, what is available is only the suggestion made by petitioner while respondent No.1 was in the box. Petitioner suggested that he had borrowed Rs.17,000/- from Advocate Syamaprasad and given Ext.P1 in signed blank form to the said Syamaprasad Crl.R.P.No.2154/2009 3 as security. Respondent No.1 denied that suggestion. There is no evidence or circumstance to show that the cheque reached respondent No.1 in the circumstances pleaded by petitioner. Courts below have considered the evidence and come to the conclusion that petitioner issued the cheque in favour of respondent No.1 for discharge of that debt. There is no reason to interfere with that finding. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. He was directed to pay compensation of Rs.55,000/- to respondent No.1 and in default of payment to undergo simple imprisonment for three months. Appellate court modified the substantive sentence as simple imprisonment till rising of the court. Compensation payable was modified as Rs.50,000/- and the default sentence was modified as simple imprisonment for two months. There is no reason to interfere with the substantive sentence or compensation and default sentence awarded by the appellate court. 6. Learned counsel requested that petitioner may be granted three months’ time to pay compensation. Counsel highlighted the difficulties experienced by the petitioner. Considering the difficulties expressed by the learned counsel to raise the amount immediately and the amount involved, petitioner is granted three months’ time from today to deposit compensation Crl.R.P.No.2154/2009 4 Resultantly this revision fails. It is dismissed. Petitioner is granted three months’ time from today to deposit compensation in the trial court as ordered by the appellate court. It is made clear that it will be sufficient compliance of the direction for deposit of compensation 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 compensation within the said period of three months. Petitioner shall appear in the trial court on 9.10.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks