IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 Crl.Rev.Pet.No. 343 of 2005(C) ----------------------------- CRA.129/2001 of ADDL.SESSIONS COURT (ADHOC)III, PATHANAMTHITTA CC.139/1999 of JUDL. MAGISTRATE OF FIRST CLASS-II, PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SANTHOSH MATHEW, SANTHOSH TEXTILES, MARKET JUNCTION, KONNI. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): RESPONDENTS/COMPLAINANT ------------------------------------------------------ 1. C.N.GANGADHARAN, SANTHOSH BHAVAN, VATTAKKAVU, VATTAPPARA P.O., KONNI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.S.MANILAL FOR R1 PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRIMINAL.R.P. NO. 343 OF 2005 = = = = = = = = = = = = = = = Dated this the 11th day of November, 2008. O R D E R This revision is preferred against the judgment of the Additional Sessions Judge, Pathanamthitta in Crl.A.129/01. That appeal was preferred against the conviction and sentence passed by the Judicial First Class Magistrate-II, Pathanamthitta in C.C.139/99. The trial court convicted the accused and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.5,000/- and a compensation of Rs.75,000/-. In appeal the appellate court altered the sentence of imprisonment to one month and the compensation to Rs.80,000/-. It is against that the present revision is preferred. 2. Heard the counsel. It is the case of the complainant that the accused had borrowed a sum and towards discharge of the liability had issued a cheque which when presented for encashment returned with endorsement insufficiency of funds and when a notice was sent it was Cr.R.P. 343 OF 2005 -:2:- returned unclaimed. In the defence the revision petitioner contended that the amount has already been repaid and notice received is not proper. The Courts below considered both the oral and documentary evidence adduced in this case and there is nothing brought out to show it is incorrect. Ext.P1 was proved and there was no evidence to rebut the presumption u/Ss. 118 and 139 of the N.I. Act. 3. The solitary point that was canvassed was regarding the notice. It has been now settled by a large number of decisions that when a notice is sent on a proper address and it is returned back with proper endorsement of not claimed then it amounts to sufficiency of notice. So that contention also cannot help the revision petitioner. Therefore the conviction u/s 138 is sustained as there is no illegality or irregularity in the finding of the courts below. 4. So far as the sentence is concerned I feel leniency can be shown by altering the sentence to one of imprisonment for one day, i.e. till the raising of the Court and to pay a fine of Rs.80,000/- which on realisation be paid to the complainant in the case. In case of default of payment of fine the revision petitioner has to undergo Cr.R.P. 343 OF 2005 -:3:- imprisonment for a period of two months. In the result the Crl.R.P. is disposed of as follows: (1) The conviction u/s 138 of the N.I. Act is sustained. (2) The sentence is modified and the revision petitioner is directed to undergo simple imprisonment for one day and to pay a fine of Rs.80,000/- which on realisation be paid to the complainant in the case. (3) In case of default of payment of fine the revision petitioner has to undergo imprisonment for a period of two months. (4) The revision petitioner shall appear before the trial court to receive the sentence and also for payment of fine on 12.2.2009, failing which the trial court shall execute the sentence. The Crl.R.P. is disposed of as above. M.N. KRISHNAN, JUDGE. ul/-