IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3666 of 2009() ------------------------------ CRA.135/2009 of SESSIONS COURT, KOTTAYAM ST.426/2007 of JUDICIAL MAGISTRATE OF FIRST CLASS - II, ETTUMANUR ................................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------------------- M.T.JOHN,S/O.THOMAS, AGED 66 YEARS,MULAMMOOTTIL HOUSE, KUNNAMTHANAM P.O.,PATHANAMTHITTA DISTRICT. BY ADV. SRI.P.K.BALAKRISHNAN NAIR SRI.K.V.JAYADEEP MENON RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. V.S.SEBASTIAN, AGED 62 YEARS,VALLIYATH HOUSE,ATHIRAMPUZHA P.O., KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR MR. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN J. ----------------------------- CRL.R.P. No. 3666 of 2009 ------------------------------ Dated this the 25th day of November, 2009. O R D E R The Judicial Magistrate of the First Class-II, Ettumanoor in S.T.No.426 of 2007 on his file convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for four months and ordered to pay Rs.65,000/- as compensation to the first respondent, who is the complainant before the trial court. In Crl.A.No.135 of 2009, the Session Judge, Kottayam by judgment dated 26.8.2009 confirmed the conviction and the sentence was reduced to imprisonment till rising of the court and ordered to pay Rs.1,00,900/- as compensation to the first respondent. Assailing the legality, correctness and propriety of the conviction and sentence, as modified in appeal, this revision petition was filed. 2. Having heard the learned counsel for the revision petitioner and perusing the judgment of the court below, I find that the first respondent, who was examined as PW1, along with the evidence of his son, who was examined as PW2 and Exts.P1 to P6, had succeeded to establish that the revision petitioner owed a sum of Rs.1,00,900/- and in discharge of the said liability, Ext.P1 cheque dated 23.10.2006 for the said amount drawn on Induslnd Bank, Thiruvalla Branch was issued and CRL.R.P. No. 3666 of 2009 2 that when Ext.P1 cheque was presented for collection, it was dishonoured for insufficiency of funds as evidenced by Ext.P2 and P3 memos dated 15.1.2007 and 17.1.2007 respectively. Though a lawyer notice demanding discharge of the liability was caused as evidenced by Exts.P4 and P5 it was returned unclaimed and the liability was not discharged. 3. The revision petitioner took up a defence that only a sum of Rs.30,000/- was received and that a blank cheque was issued as security and that the said amount was repaid but the cheque was not returned. However he did not care to adduce any evidence in support of his defence plea. The result is that the evidence of PWs1 and 2, supported by Ext.P1 remains uncontroverted. The revision petitioner could not succeed to rebut legal presumption in support of the evidence of PWs1 and 2. There is little evidence to conclude that the liability is anything lesser than what is shown in Ext.P1 and as deposed by PW1 and 2. Hence it is to be found that Ext.P1 is supported by consideration and issued in discharge of liability. Dishonouring of cheque is also not disputed. It is not in dispute that the notice was duly addressed but it was returned unclaimed. There is no record to show that the postman returned the notice with any ulterior motive at the instance of the first respondent. So, it is to be concluded that the revision petitioner refused it. Hence it had to be treated that there is constructive notice as contemplated by the CRL.R.P. No. 3666 of 2009 3 statute. The first respondent had complied with the statutory requirements before launching the prosecution. I find no reason to come to a conclusion that the court below had committed any error, illegality or impropriety. The appellate court was very lenient in reducing the sentence to one of imprisonment till rising of the court and awarding compensation equal to the cheque amount. If at all erred, it is only towards leniency. There is no reason for interference in the sentence also. In the result the revision petition is dismissed. The revision petitioner is granted six months time to pay the compensation amount. Till then, the bail bond executed by the revision petitioner shall remain in force. Sd/- P.S.GOPINATHAN JUDGE //True Copy// PA to Judge ab CRL.R.P. No. 3666 of 2009 4