IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3848 of 2009() ------------------------------ CRA.942/2007 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.385/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS-III, NEDUMANGAD .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- S. ANILLAL, S/O.SUDHAKARAN, 'GOPALAYAM' VALIYAKADA, CHIRAYINKEEZHU. BY ADV. SRI.M.SREEKUMAR RESPONDENTS: COMPLAINANT & STATE ---------------------------------- 1. R.SATHEESH KUMR, S/O. BHASKARAN, SREEKRISHNAVILAS, THANNIMOODU, ARYANADU.P.O. TRIVANDRUM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN,J. ----------------------------------- Crl.R.P.No.3848 of 2009 ---------------------------------- Dated this the 11th day of December, 2009 ORDER The Judicial Magistrate of the First Class-III, Nedumangad in C.C.No.385 of 2006 convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for 25 days. He was ordered to pay Rs.70,000/-, the cheque amount as compensation to the first respondent, the complainant under Section 357(3) of the Code of Criminal Procedure with a default sentence of simple imprisonment for 20 days. 2. Being aggrieved, Criminal Appeal No.942 of 2007 was filed. The Second Additional Sessions Judge, Thiruvananthapuram by judgment dated 30/9/2009, while confirming the conviction, reduced the sentence to imprisonment till rising of the court. On the same time the compensation was enhanced to Rs.75,000/- with a default sentence of simple imprisonment for 25 days. Now this revision petition. 3. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find Crl.R.P.No.3848 of 2009 2 that the first respondent who was examined as PW.1 had succeeded to establish that on 5/1/2006, the revision petitioner borrowed a sum of Rs.70,000/- from the 1st respondent and in discharge of the said liability, Ext.P1 cheque for the said amount dated 19/1/2006 drawn on Chirayinkeezhu Service Co-operative Bank was delivered and that when Ext.P1 was sent for collection through the State Bank of Travancore, Vikas Bhavan branch, it was returned dishonoured as evidenced by Exts.P2 and P3 memos dated 28/4/2006 and that demanding discharge of liability, a lawyer notice dated 24/5/2006, copy of which was marked as Ext.P4 was caused in the official as well as the residential address of the revision petitioner. Despite the intimation given by the postal authority the revision petitioner did not accept the notices. Neither the liability was discharged. 4. The revision petitioner took up a defence that one Anuroop borrowed some money from the first respondent and to facilitate that transaction, the revision petitioner lent the cheque in dispute. Though Anuroop discharged the liability, the cheque was not returned on some pretext or other and misusing that cheque, the prosecution was launched. Though the revision Crl.R.P.No.3848 of 2009 3 petitioner had advanced such a case he had not cared to adduce any evidence to substantiate his defence. The result is that the defence suggestion remains to be a suggestion. Though PW.1 was cross-examined at length, no material was disclosed to impeach the veracity of his evidence. The evidence of PW.1 is supported by the presumptions under Sections 118 and 139 of the Negotiable Instruments Act. The suggestion made by the revision petitioner is not at all sufficient enough to rebut the legal presumptions. The evidence of PW.1 remains uncontroverted. 5. The revision petitioner had got a case that the notice was sent in wrong address. But no material was brought on record to substantiate that contention also. On the other hand, the first respondent examined the post woman attached to the Kumarapuram Post Office as PW.3. She would depose that she had taken the notice to the office of the revision petitioner. As he was absent an intimation was given. But the revision petitioner, whom she directly knows, did not care to take delivery of the notice and in that circumstance the notice was returned undelivered. The revision petitioner could not shake Crl.R.P.No.3848 of 2009 4 the evidence of PW.3 in cross-examination. So it had to be concluded that PW.3 who was discharging official duties had acted in good faith and had offered notice which the revision petitioner refused, probably understanding the contents. There is no reason to disbelieve PW.3. So it had to be presumed that there is constructive notice. The first respondent had complied with the statutory requirements. His evidence is sufficient enough to establish the liability, issuance of cheque, dishonouring of the same, issuance of the notice and failure to discharge the liability. The courts below had rightly given reliance to the testimony of PW.1. I find that the conviction is based upon cogent evidence. There is no reason to interfere with. 6. Though the appellate court was very lenient in reducing the substantiate sentence to imprisonment till rising of the court, with no good reason the compensation was enhanced to Rs.75,000/- from Rs.70,000/- awarded by the trial court. In the absence of any good reason to enhance the compensation, I find that the enhancement made by the appellate court is not sustainable and it is to be restored to the amount awarded by the Crl.R.P.No.3848 of 2009 5 trial court. To that extent the sentence requires a modification. In the result, while allowing the revision petition in part, the compensation ordered to be given to the first respondent by the appellate court is reduced to Rs.70,000/-. In all other respects the judgments of the appellate court is confirmed. The revision petitioner is granted six months time to pay the compensation. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN,JUDGE skj