IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 CRL.REV.PET.NO. 1773 OF 2009() ------------------------------------------- CRA.553/2006 OF ADDL. SESSIONS COURT-II, MAVELIKKARA CC.322/2005 OF JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------------------------------- K.UNNIKRISHNAN, MODATHU KUZHAKKETHIL HOUSE, ERUVA KIZHAKKUM MURI, PATHIYOOR, KAYAMKULAM (VILLAGE ASSISTANT, VILLAGE OFFICE, ENNAKAD). BY ADV. SRI.JOHN BRITTO RESPONDENT(S): RESPONDENTS/COMPLAINAT & STATE. -------------------------------------------------------------------------------- 1. P.UNNIKRISHNA PILLAI, PALATHUMPATTU HOUSE, KEEZHECHERIMEL, CHENGANNUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = CRL. R.P. NO.1773 of 2009 = = = = = = = = = = = = = = = = = Dated this the 8th day of June, 2009 O R D E R -------------- This revision is in challenge of the decision of learned Additional Sessions Judge, Mavelikara in Crl.Appeal No.553 of 2006 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). 2. Respondent No.1 filed a complaint alleging that petitioner issued Ext.P1, cheque dated 18.4.2004 towards payment of amount due to him and that cheque was dishonoured for insufficiency of funds. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment which was served on him but he did not respond. Respondent No.1 gave evidence as P.W.1 and testified to his case. He proved Exts.P1 to P5. Exhibit P1 is the cheque in question. Its dishonour for insufficiency of funds and intimation of dishonour to respondent No.1 are proved by Exts.P2 and P3. Exhibit P4 is the office copy of notice and Ext.P5 is the postal receipt for sending the notice to the petitioner by registered post. 3. Contention raised by petitioner when questioned under CRL. R.P. No.1773 of 2009 -: 2 :- Section 313 of the Code of Criminal Procedure (for short,”the Code”) is that he had borrowed some amount from his friend, Gopalakrishnan and given a signed blank cheque to him. He repaid the amount to Gopalakrishnan but the cheque was not returned. That cheque has been misused. Petitioner did not adduce evidence in support of that contention. 4. Dishonour of the cheque for insufficiency of funds is proved by Exts.P2 and P3. It is contended by learned counsel that statutory notice was not served on petitioner. Counsel states that acknowledgment card was not produced by respondent No.1. Exhibit P4 and P5 would show, and it is not disputed also that respondent No.1 issued notice to the petitioner by registered post in the correct address of the petitioner. It is true that the acknowledgement card is not produced but petitioner, when examined under Sec.313 of the Code did not dispute that there was service of notice on him. Appellate court has referred to in paragraph 9 of the judgment that petitioner admitted receipt of notice. Under Section 27 of the General Clauses Act presumption is that when a notice is sent by registered post in the correct address it reached the addressee. That, the acknowledgment card was not returned to respondent No.1 also indicates that there CRL. R.P. No.1773 of 2009 -: 3 :- was due service of notice on petitioner. Therefore contention that petitioner was not served with statutory notice cannot stand. 5. It is next contended by learned counsel that what is averred in paragraph 1 of the complaint is that petitioner issued the cheque in question as security for the amount due to respondent No.1 in which case offence under Sec.138 of the Act will not lie. 6. When a post dated cheque is issued it remains as a bill of exchange until the due date and assumes negotiability on the date of the instrument. The mere fact that the word ‘security’ is used cannot mean that no offence under Sec.138 of the Act is made out. Respondent No.1 gave evidence as P.W1 that petitioner owed Rs.1,00,000/- and issued the cheque for the repayment of that amount. When the cheque was presented for encashment it was returned for the reason that there was no sufficient funds. According to the petitioner he has no transaction with respondent No.1 and had borrowed some amount from his friend, Gopalakrishnan to whom the cheque was given. It is pertinent to note that petitioner did not reply to the statutory notice (served on him) taking up such a contention. Nor did he prove or probabilise in any other manner that he had transaction with Gopalakrishnan and Ext.P1, cheque was given to CRL. R.P. No.1773 of 2009 -: 4 :- Gopalakrishnan as contended by the petitioner. It is in these circumstances that courts below found in favour of respondent No.1 regarding due execution of the cheque. Nothing is brought out to disbelieve his evidence. I do not find any illegality, irregularity or impropriety in the courts below in holding so. Petitioner was not able to rebut the presumption under Sec.139 of the Act. Therefore conviction cannot be assailed. 7. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed him to pay compensation of Rs.1,00,000/- and in default of payment to undergo simple imprisonment for two months. Appellate court did not interfere with the sentence or direction for payment of compensation. Learned counsel for petitioner submitted that petitioner is a Government servant and hence sentence of imprisonment may be avoided. 8. Considering the circumstances stated by the petitioner and object of legislation and also taking into account the fact that offence was committed after amendment of Sec.143 of the Act with effect from 6.2.2003, I am inclined to think that fine of Rs.1,05,000/- is sufficient in the ends of justice. Out of the fine if realised, Rs.1,00,000/- will be paid to respondent No.1 as compensation under CRL. R.P. No.1773 of 2009 -: 5 :- Sec.357(1) of the Code. Resultantly, this revision is allowed in part to the following extent. Substantive sentence of imprisonment awarded to the petitioner and direction for payment of compensation are set aside. Instead petitioner is sentenced to pay fine of Rs.1,05,000/- (Rupees One lakh and five thousand only) within three months from this day failing which he shall undergo simple imprisonment for two months. Out of the fine if realised Rs.1,00,000/- (Rupees One lakh only) will be given to respondent No.1 as compensation under Sec.357(1) of the Code. THOMAS P.JOSEPH, JUDGE. vsv