IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 Crl.Rev.Pet.No. 3904 of 2008() ------------------------------ CRA.975/2005 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.494/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... REVN. PETITIONER(S): --------------------- MOIDHU S/O. VANIUM VEETIL ABDULLA, VLAYAM VILLAGE VADAKARA TALUK, KOZHIKODE POST. BY ADV. SRI.PULIKKOOL ABUBACKER SRI.ZUBAIR PULIKKOOL RESPONDENT(S): --------------- 1. DASAN S/O. CHANASSERY VELAYUDHAN INCHAMUDI VILLAGE DESOM. REP. BY POWER OF ATTORNEY HOLDER RADHA DASAN W/O.DASAN, INCHAMUDI, THRISSUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ................................................. Crl.R.P. No. 3904 of 2008 ................................................ Dated, this the 18th day of February, 2009. O R D E R In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioner who was the accused in C.C. No. 494 of 2004 on the file of the J.F.C.M. I, Thrissur challenges the conviction entered and the sentence passed against him for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). The cheque amount was Rs. 2,65,000/-. The fine/compensation ordered by the lower appellate court is Rs. 30,000/-. 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor. 3. The learned counsel appearing for the Revision Petitioner re- iterated the contentions in support of the Revision. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant, that the complainant had validly complied with clauses (a) and (b) of the proviso to Section 138 of the Act and that the Revision Petitioner/accused failed to make the payment within 15 days of receipt of the statutory notice. 4. The learned counsel appearing for the revision petitioner made the following submissions in support of the revision:- The complaint was filed by Dasan through his wife as the power- of-attorney holder. His wife was examined as P.W.1. In Ext.P1 notice as well as in the complaint the specific allegation is that it was from the complainant that the accused borrowed the amounts. But P.W.1 , the wife Crl.R.P. 3904 of 2008 -:2:- of the complainant would say that she gave the money on the instructions of her husband. This was contrary to the averments in Ext.P7 notice and the complaint. Ext.P7 statutory notice was returned unserved with the endorsement that the addressee has left and his present address was not known. Ext.D1 election identity card produced by the revision petitioner to prove his correct address was discarded by the courts below holding that it was issued after Exts. P1 and P2 cheques were issued. Before the lower appellate court, the revision petitioner had produced Ext.P2 photocopy of the relevant copies of his passport issued in the year 1992 showing his correct address. The said document has not been taken into account by the lower appellate court while appreciating the petitioner's contention that the statutory notice was not given to him in the correct address. The revision petitioner had denied the execution of Exts.P1 and P2 cheques. When the signatures in Exts.P1 and P2 cheques have been disputed by him no presumption is available to the complainant. The revision petitioner had actually loss two cheque leaves while he was in Oman. Those cheque leaves were misused by the complainant for lodging the case against the petitioner. 5. I am afraid that I cannot agree with the above submissions. The testimony of P.W.1 the wife of the complainant to the effect that she gave the money to the accused on the instructions of her husband does not seriously militate against the averments in Ext.P7 notice as also the averments in the complaint. The payee under Exts. P1 and P2 cheques are none other than complainant Dasan who is the husband of P.W.1. It is true that Ext.P7 statutory notice was returned with the endorsement that the addressee has left and his present address is not known. But the very same address was shown in the complaint and process was Crl.R.P. 3904 of 2008 -:3:- issued by the learned Magistrate to the very same address. Even in the appeal filed before the lower appellate court the address shown by the revision petitioner was the very same address as was shown in the complaint and Ext.P7 statutory notice. Hence, it is futile for him to contend that the statutory notice was not issued to him in the correct address. The complainant was entitled to the presumption regarding due service. Hence, Exts. D1 and D2 documents produced by him before the courts below are of no avail to him. It is easy to deny execution of the cheque by disputing the signatures therein. Absolutely no explanation has been offered by the revision petitioner as to how two of his cheque leaves came into the hands of the complainant. According to him he had lost two cheque leaves while he was in Oman. Admittedly, he has not lodged any complaint before the police. No stop memo also was issued by him to the drawee bank countermanding payment. Under these circumstances, the conviction recorded by the courts below is unassailable. 6. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the conviction. The said conviction has been recorded after a careful evaluation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the evidence so recorded concurrently by the courts below and the same is hereby confirmed. 7. What now survives for consideration is the legality of the sentence imposed on the revision petitioner. In the light of the recent decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya - 2008 (1) KLT 851 default sentence cannot be imposed for the enforcement of an order for compensation under Sec. 357 (3) Cr.P.C. I am, therefore, inclined to modify the sentence to one of fine only. Crl.R.P. 3904 of 2008 -:4:- Accordingly, for the conviction under Section 138 of the Act the revision petitioner is sentenced to pay a fine of Rs. 2,65,000/-. (Rupees two lakh sixty five thousand only ). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within six months from today and produce a memo to that effect before the trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforementioned period he shall suffer simple imprisonment for three months by way of default sentence. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. Dated this the 18th day of February, 2009. Sd/-V. RAMKUMAR, JUDGE. /true copy/