IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 Crl.Rev.Pet.No. 2026 of 2009() ------------------------------ CRA.478/2008 of SESSIONS COURT, KOTTAYAM ST.1880/2006 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOTTAYAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- JACOB T.V.KUNNEL HOUSE, THIRUVANCHOOR P.O. , KOTTAYAM. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. THE STAE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA 2. MR.MANOJ CHACKO, PROPRIETOR, KALLUPALAM BANKERS VALAYIL BUILDINGS, SASTHRI ROAD, KOTTAYAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2026 of 2009 -------------------------------------- Dated this the 24th day of June, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. 2. Petitioner faced trial in the court learned Judicial Magistrate of First Class-I, Kottayam in S.T.No.1880 of 2006 on a complaint preferred by respondent No.2. According to respondent No.2 petitioner owed Rs.25,000/- to him and for repayment of that amount issued Ext.P1, cheque dated 27.3.2006. That cheque was returned for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.2 issued notice to the petitioner on 29.3.2006 intimating dishonour and demanding payment of the amount. Notice was returned unclaimed. Dishonour of the cheque for reason of insufficiency of funds is proved by Exts.P2 and P3. Exts.P4 and P5 show that notice was issued to the petitioner in correct address by registered post. Ext.P6 shows that intimation was given to the petitioner but notice was not claimed and was returned. Under Section 27 of the General Clauses Act when a notice issued in correct address by registered post, presumption is that it reached the addressee. In this case there is no dispute regarding the correctness of address of petitioner given in Exts.P4 and P5. There is also endorsement by the postman that intimation was Crl.R.P.No.2026/2009 2 given to petitioner but it was not claimed. Hence there is deemed service of notice on petitioner. Respondent No.2 gave evidence as PW1. He admitted that he is a private financier but claimed that he has licence under the Money Lenders Act. He claimed that petitioner borrowed Rs.25,000/- from him in the year 2006 and for discharge of that liability issued Ext.P1, cheque. It was suggested to respondent No.1 in cross examination that petitioner lost the cheque from his custody, somebody took it up and gave the same to him. He denied that suggestion. He also denied the suggestion that petitioner had not signed the cheque. He claimed that petitioner signed the cheque in his presence. Petitioner did not adduce any evidence regarding this contention. 3. So far as due execution of the cheque is concerned, there is evidence of respondent No.2 as PW1. It is difficult to think that petitioner lost the cheque from his possession and somebody took it up and handed over the same to respondent No.2. If that was the situation, petitioner would have informed his bank about his missing the cheque and requested to stop payment. Moreover the failure of petitioner to claim notice inspite of intimation indicated that he was aware of the claim made on behalf of respondent No.2. Apart from putting some questions to respondent No.2, no effort was made by petitioner to substantiate or probabilise his contention. Nothing was brought out to disbelieve the evidence of PW1. In these circumstances I do not find reason to interfere with the concurrent finding of the courts below as to the due execution of cheque. 4. Learned magistrate sentenced the petitioner to undergo simple Crl.R.P.No.2026/2009 3 imprisonment for three months. Appellate court modified the sentence as one till rising of the court and fine of Rs.28,000/- with default sentence for two months. It was directed that out of fine if realized Rs.25,000/- will be given to respondent No.2 as compensation under Section 357(1) of the Code of Criminal Procedure. Petitioner now seeks one month’s time to deposit fine in the trial court. 5. Having regard to the nature of offence and the object of legislation there is little reason to interfere with the sentence as modified by the appellate court or the default sentence. Petitioner is however granted one month’s time to deposit fine in the trial court. Resultantly, this revision fails. It is dismissed. Petitioner is granted one month’s time from today to deposit fine in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on 27.7.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 27.7.2009. Crl.M.A.No.6087 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks