IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 Crl.Rev.Pet.No. 439 of 2001() ------------------------------------ CRL.A.159/95 of I ADDL. SESSIONS COURT, PALAKKAD S.T.2696/93 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PATTAMBI .................... REVN. PETITIONER : ------------------------ M.C.CHUMMAR, S/O.CHERU, MALAKATTUKULAM HOUSE, P.O.PERINGODE, OTTAPPALAM TALUK. BY ADV. SRI.A.P.CHANDRASEKHARAN (SR.) SMT.PRABHA R.MENON SRI.KODOTH SREEDHARAN SRI.M.KRISHNAKUMAR SRI.K.JAYESH MOHANKUMAR RESPONDENTS : ------------------- 1. C.I.JOB, S/O.ITTIYACHAN, CHEERAN HOUSE, CHALISSERRY, OTTAPPALAM TALUK, PALAKKAD DISTRICT 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ADV. SRI.V.P.YOHANNAN - R1 SRI.A.C.CHACKO - R1 PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/10/2008,ALONG WITH CRL.R.P. NO.572 OF 2001 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 439 of 2001 ORDER ON CRL.M.P.NO.2083 OF 2001 IN CRL.R.P.NO.439 OF 2001 DISMISSED 07.10.2008 SD/- THOMAS P.JOSEPH, JUDGE -TRUE COPY- P.A. TO JUDGE pac THOMAS P. JOSEPH, J. ------------------------------ CRL. R. P.Nos. 439 & 572 of 2001 ------------------------------ Dated this the 7th day of October, 2008 O R D E R Heard counsel on both sides. 2. These revision petitions arise from S.T. No. 2696/1993 on the file of Judicial First Class Magistrate Court, Pattambi. Revision petitioner faced trial in that court for offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred as 'the Act') on a complaint preferred by first respondent alleging that Exhibit P1, cheque dated 30/04/1993 for Rs.1,20,000/- issued by revision petitioner for discharge of debt due to first respondent was dishonoured for insufficiency of funds, notice issued to revision petitioner was returned as unclaimed and that revision petitioner did not pay the amount covered by the cheque. Learned Magistrate convicted revision petitioner and sentenced him to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for three months. Revision petitioner challenged the conviction and sentence in Criminal Appeal No. 159/1995 while aggrieved by the sentence, first CRL. R. P. Nos. 439 & 572 of 2001 2 respondent filed Criminal Revision Petition No.82/1995 before the same court. Learned Sessions Judge disposed of the appeal and criminal revision petition as per common judgment. Conviction was confirmed. Sentence imposed by the trial court was set aside and the case was remitted to the trial court to award proper sentence. Revision petitioner is challenging the common judgment in these revision petitions. 3. Learned counsel for revision petitioner submitted that conviction is not justified in the light of evidence let in by first respondent. Statements made by first respondent in the box do not find a place in the complaint. It is also submitted by learned counsel that there is no evidence to show that statutory notice under Section 138(b) of the Act was served on revision petitioner. Counsel for first respondent supported concurrent finding entered by the courts below. 4. Exhibit P1 is the cheque in question. First respondent gave evidence as PW1 and claimed that revision petitioner borrowed Rs. 1,20,000/- from him on 28/5/1992 undertaking to repay the same soon CRL. R. P. Nos. 439 & 572 of 2001 3 but payment was delayed. Thereon he insisted for some document and on 3/02/1993 revision petitioner brought the cheque (Exhibit P1) filled up, signed it in his presence and handed over the same to first respondent. Case of revision petitioner as seen from the suggestions in cross examination of first respondent is that he had borrowed Rs.50,000/- from first respondent on security of pledge of gold ornaments and handed over two signed blank cheques as collateral security one of which has been misused. He sent Exhibit D1, notice to revision petitioner demanding return of the cheques. Exhibit D2 is the reply given by first respondent to that notice. 5. Going by the version of first respondent, he had been engaged in financial business only till 1987 and thereafter he was not engaged in that business. It is not the case of revision petitioner that he borrowed Rs.50,000/- from first respondent before 1987. There is also no evidence to show that first respondent was engaged in that business after 1987. Exhibit D1 cannot help revision petitioner for the reason that said notice was sent after first respondent filed complaint against CRL. R. P. Nos. 439 & 572 of 2001 4 revision petitioner. 6. It is true that details of loan transaction stated by first respondent in evidence is not given in the complaint. But it has to be borne in mind that this is a prosecution for offence under Section 138 of the Act and what is required to be necessarily pleaded by first respondent is only that cheque issued by revision petitioner for discharge of debt was dishonoured for insufficiency of funds, which he has done. I have gone through the evidence of first respondent and nothing has brought out to disbelieve that evidence. Learned Magistrate took note of these facts and observed that first respondent is entitled to the presumption under Section 139 of the Act which has not been rebutted by revision petitioner in any manner. As such, there is little reason to interfere with the concurrent finding that revision petitioner issued Exhibit P1, cheque for discharge of the debt. 7. So far as contention regarding want of proper notice is concerned, Exhibit P3 series takes in office copy of the notice as well as registered notice sent to revision petitioner but returned to the CRL. R. P. Nos. 439 & 572 of 2001 5 sender. I have gone through the copy of notice and find that intimation was given to revision petitioner regarding the dishonour of cheque and he was called upon to return the cheque amount with interest, notice charges etc. The endorsement on the registered notice is that intimation was served on revision petitioner, but it was returned as unclaimed. Responsibility of first respondent was only to send notice in the correct address which he has done. Therefore, the court below is justified in holding that there is deemed service of notice on revision petitioner. In the facts and circumstance of case there is little reason to interfere with the conviction of revision petitioner. 8. Turning to the sentence awarded by learned Magistrate, it has been in time and again held that though prosecution under Section 138 of the Act is not by itself a mode of recovery of cheque amount, the courts must bear in mind the legislative intent. The payee or holder in due course who suffered loss at the hands of the drawer of the cheque has to be compensated. It is in this circumstance that learned Sessions Judge set aside the sentence and remanded the case to learned CRL. R. P. Nos. 439 & 572 of 2001 6 Magistrate to award proper sentence. Sitting in revision, I do not find any reason to interfere with the view taken by learned Sessions Judge which is in accordance with the object of legislation. These revision petitions therefore fail and are accordingly dismissed. Parties are directed to appear before learned Magistrate on 7/12/2008. Bail bond executed by the revision petitioner is cancelled. THOMAS P. JOSEPH, JUDGE scm