IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 Crl.Rev.Pet.No. 566 of 2001() ----------------------------- CRA.67/1999 of SESSIONS COURT, ALAPPUZHA CC.4/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVISION PETITIONER/APPELLANT/ACCUSED: ------------------ V.K.ABDUL MAJEED, PROPRIETOR OF PLASTOFAB, VELUTHEDATH, CHANDIROOR, CHERTHALA. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENTS/RESPONDENTS/COMPLAINANT: ------------- 1. K.O.ANILKUMAR, S/O.PRABHAKARAN, KANIYAMPARAMBIL HOUSE, KODAMTHTHURUTHU, KUTHIATHODU. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.G.UNNIKRISHNAN NAIR FOR R1 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.566 of 2001 -------------------------------------- Dated this the 16th day of September, 2008. ORDER The revision petitioner is challenging the concurrent finding of fact entered by the trial court as well as the appellate court that he issued Ext.P1, the cheque in question in favour of the first respondent for the discharge of the debt, that cheque was dishonoured for insufficiency of funds and that in spite of dishonour intimation and demand for payment of the amount, he did not pay the amount covered by the cheque. The learned Magistrate sentenced the revision petitioner to undergo simple imprisonment for three months and pay fine of Rs.32,000/-. In appeal, the direction for payment of fine of Rs.32,000/- was modified as fine of Rs.5,000/-. The sentence of imprisonment was confirmed. 2. The first respondent and counsel remained absent and hence, I did not have the occasion to hear them. I heard the counsel for the revision petitioner. The learned counsel submitted that it was ignoring the candid admission made by the first respondent as PW1 that the courts below found in favour of the due execution of the cheque for the discharge of the debt. It is also argued by the learned counsel that there is no evidence to show that notice of dishonour and demand for payment was served on the revision petitioner. 3. The case pleaded by the first respondent in the complaint and in his evidence as PW1 is that at a time when he was running a stationery shop, the Crl.R.P.No.566/2001 2 revision petitioner borrowed Rs.31,625/- from him on 25.8.1995 and for the discharge of that debt, issued Ext.P1, cheque dated 1.9.1995. The dishonour of the cheque for insufficiency of funds is proved by Ext.P2 and that part of the finding entered by the courts below is not under challenge. The case pleaded by the revision petitioner is that he had handed over Ext.P1, cheque for adjustment in the business run by the first respondent. He had not borrowed any amount from the first respondent. The learned counsel submitted that this is practically admitted by the first respondent as PW1. 4. In the course of cross-examination PW1 was asked whether it is correct to suggest that the revision petitioner had given a cheque without receiving any money from him. He answered in the affirmative. It is true, it is so stated by the first respondent. But immediately following that statement when it was again put to the first respondent (PW1) that he had not lent any money to the revision petitioner, he denied the suggestion and claimed that he had lent the money. Not satisfied with the so called 'admission' made by the first respondent as PW1, it was again suggested to him that the revision petitioner had handed over a cheque for adjustment in connection with his business. First respondent answered that the revision petitioner issued the cheque for the amount due to him. It is not justifiable to cull out a single, stray sentence from the deposition of PW1 to hold that the cheque is not supported by consideration. On a consideration of the entire evidence of PW1, it is certain that he stood by his case about the revision petitioner borrowing the amount and issuing the cheque for the discharge of that debt. Crl.R.P.No.566/2001 3 5. The next argument is regarding the service of notice. Ext.P4 is the office copy of the notice and Ext.P3, the receipt for sending the notice by registered post. Revision petitioner maintained that he did not get the notice. According to the first respondent, the notice was served on the revision petitioner on 28.9.1995 and in proof of that, produced Ext.P5, a certificate issued by the Superintendent of Post Office wherein it is stated that the registered post article in question was delivered to the addressee (revision petitioner) on 28.9.1995. Nothing was done by the revision petitioner to rebut the truth of what is stated in Ext.P5. 6. Even ignoring Ext.P5 from consideration, the revision petitioner cannot escape. The reason is that as proved by Ext.P3, the notice was sent to the revision petitioner in his correct address by registered post. I find that the address stated in Ext.P4 is given by the revision petitioner in the revision petition as well. The obligation of the first respondent under Section 138(b) of the Negotiable Instruments Act was only to send the notice in the last known correct address of the revision petitioner. A postal receipt may not be evidence of service of notice but a presumption of service would arise. In the normal course of postal business, the registered notice should reach the addressee. In that situation, the contention regarding the want of notice cannot stand. There is little reason therefore, to interfere with the conviction. 7. Counsel for the revision petitioner submitted that the substantive sentence of imprisonment may be modified. He expressed willingness of the revision petitioner to deposit by way of compensation the amount of fine Crl.R.P.No.566/2001 4 originally awarded by the learned Magistrate. Considering the nature of the offence and all other relevant factors, I am inclined to think that simple imprisonment till the rising of the court and payment of Rs.32,000/- (Rupees Thirtytwo thousand only) by way of compensation will be sufficient to meet the ends of justice. Revision Petition is allowed in part in the following lines:- (1) The substantive sentence of imprisonment awarded to the revision petitioner is modified as simple imprisonment till the rising of the court. (2) The revision petitioner shall deposit Rs.32,000/- (Rupees Thirtytwo thousand only) as compensation for payment to the first respondent in the trial court within three months from this day failing which, he shall undergo simple imprisonment for two months. (3) The revision petitioner shall surrender in the court below on 17.12.2008 to receive the sentence. Crl.M.P.No.2581 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.566/2001 5 Thomas P.Joseph Crl.R.P.No.566 of 2001 ORDER 16th September, 2008.