IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 Crl.Rev.Pet.No. 2609 of 2009() ------------------------------ CRA.1023/2006 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM ST.70/1999 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- AYSHA KHAN, D/O.PATHUMMA, REKHA, T.C. 31/1358, CHACKAI, THIRUVANANTHAPURAM, BY ADV. SRI.GEORGE SEBASTIAN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------- 1. A.BHASI, CHENNILODU VEEDU, KANNAMMOOLA, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR : SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2609 of 2009 --------------------------------------- Dated this 13th day of August 2009 ORDER Aggrieved by concurrent finding as to the due execution of a cheque for discharge of a legally enforceable debt/liability petitioner has come up in revision. She faced trial in the court of learned Additional Chief Judicial Magistrate, Thiruvananthapuram in S.T.No.70 of 1999 for offence punishable under section 138 of the Negotiable Instruments Act. Case is that petitioner borrowed Rs.50000/- from respondent No.1 and issued Ext.P1, cheque dated 05-05-1998 for repayment of the said amount. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2, P7 and P8. Respondent No.1 produced Exts.P4 to P6 to show that statutory notice issued to the petitioner was returned unclaimed though, initmation was given to her. Respondent No.1 has given evidence as PW1. According to the petitioner, she had no transaction with respondent No.1, nor is the latter known to her. She had borrowed some amount from one Beena to whom signed blank cheque was given. Respondent No.1 obtained the blank cheque from the said Beena and misused it. Petitioner gave evidence as PW1 in that line. Courts below did not accept that explanation. 2. Though, when examined as DW1 petitioner claimed that she had given an unsigned blank cheque to Beena, and it was so Crl.R.P.No.2609 of 2009 2 suggested to respondent No.1 also, when questioned under section 313 of the Code of Criminal Procedure (for short, “the Code”) her case was that signed blank cheque was given to the said Beena while borrowing Rs.10000/-. She stated that she returned the amount with interest to the said Beena but Beena demanded Rs.2000/- more. Courts below observed that so far as signature in Ext.P1 is concerned, petitioner has no consistent case. It is not disputed that the cheque is drawn on the account maintained by petitioner. In such circumstances a mere denial is not sufficient. It is for the petitioner to show that the signature in the cheque is not of her. In this case as stated in her statement under section 313 of the Code she stated that signed blank cheque was given to Beena which came to the hands of respondent No.1. In otherwords signature in Ext.P1 is not disputed in that statement. These circumstances have been taken into account by the courts below also to hold that contention of petitioner that she had not signed Ext.P1 cannot be accepted. 3. It is contended by learned counsel that though respondent No.1 has a case that petitioner herself filled up the cheque, that was not considered by the courts below. That statement of respondent No.1 formed part of his case that petitioner issued the cheque in his favour which has been discussed by the courts below and found in favour of due execution of the cheque. Crl.R.P.No.2609 of 2009 3 4. Yet another contention raised is that there was no proper service of notice on petitioner. Courts below observed that there is no contention that the address of petitioner given in Exts.P3 and P5 is not correct. When notice is send under registered post in the correct address one has the presumption that in the ordinary course it should reach the addressee. The postman has endorsed on the returned cover that it was not claimed inspite of intimation given to the petitioner. That endorsement is not shown to be incorrect. As such, conviction of petitioner does not warrant interference. 5. Learned Additional Chief Judicial Magistrate sentenced petitioner to undergo simple imprisonment for three months and payment of fine of Rs.55000/- with a default sentence of imprisonment for two months. It was directed that out of the fine if realised Rs.50000/- will be given to respondent No.1 as compensation. Appellate court confirmed the fine part of the sentence and default sentence but the substantive sentence is modified as simple imprisonment for one month. Learned counsel requested that substantive sentence awarded to the petitioner may be modified, fine may be converted as compensation payable to respondent No.1 directly and that in view of the financially difficult situation petitioner is facing, she may be granted six months' time for such payment. 6. Appellate court directed that out of the fine of Rs.55000/- if Crl.R.P.No.2609 of 2009 4 realised, Rs.50000/- will be paid to respondent No.1 as compensation. Considering the nature of offence and object of imposing sentence of fine, I am inclined to think that the sentence of fine can be converted as compensation of Rs.50000/- payable to respondent No.1 which is the amount the court below directed to be paid to respondent No.1 from the amount of fine if realised. Substantive sentence can be modified as simple imprisonment till rising of the court. Considering the circumstances stated by learned counsel petitioner is granted time till 12-01-2010 to deposit the compensation. Resultantly this revision petition is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Sentence of fine is set aside. Instead petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.50000/- (Rupees Fifty Thousand Only) by way of compensation under section 357(3) of the Code of Criminal Procedure on or before 12-01-2010 failing which petitioner shall undergo simple imprisonment for three months. 3. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.1 through her counsel in the trial court and Crl.R.P.No.2609 of 2009 5 respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the period aforesaid. 4. Petitioner shall appear in the trial court on 13-01-2010 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 13-01-2010 . THOMAS P JOSEPH, JUDGE Sbna/