IN IN IN THE HIGH COURT OF BOMBAY AT GOA THE HIGH COURT OF BOMBAY AT GOA THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 60 OF 2003 CRIMINAL REVISION APPLICATION NO. 60 OF 2003 CRIMINAL REVISION APPLICATION NO. 60 OF 2003 Smt. Maria Conceicao Piedade Fernandes, wife of Francis Fernandes, resident of H.No.188, Grande Pedda, Benaulim, Salcete-Goa. ... Applicant versus 1. Shri Ulhas Eknath Lotlikar, son of Eknath Lotlikar, major, married, businessman, r/o House No.79, Per-Seraulim, Colva, Salcete-Goa. 2. State of Goa. ... Respondents. Miss Helen Fernandes, Advocate for the Applicant. Mr. S. R. Rivonkar, Advocate for Respondent No.1. CORAM : P. V. HARDAS, J. DATE : 26TH FEBRUARY, 2004. ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT This revision at the instance of the Accused - 2 - challenges the Judgment of the learned Judicial Magistrate First Class, Margao, dated 28th April, 2003, in Criminal Case No.694/N/2001/F convicting the Accused for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentencing her to undergo Simple Imprisonment for three months and to pay compensation under Section 357(3) of the Criminal Procedure Code of Rs.4,00,000/-(Rupees Four Lakhs only), in default to undergo Simple Imprisonment for six months, confirmed in Appeal by the appellate Court by its Judgment dated 9th September, 2003, in Criminal Appeal No.27/2003, modifying only the amount of compensation and reducing it from Rs.4,00,000/- to Rs.3,00,000/-. 2. The facts in brief as are necessary for the decision of this Criminal Revision can be stated as under:- The Respondent No.1/Complainant had filed Criminal Case No.694/N/2001/F alleging therein that the cheque issued by the Accused, dated 30th September, 2001, had bounced on account of insufficiency of funds. The Accused had not paid the said amount despite a notice at Exh.PW1/C Colly being issued to the Accused. The Complainant in support of his case examined himself as P.W.1. The defence of the Accused appears to be that the Complainant had not advanced an amount of Rs.2,50,000/- - 3 - but had obtained a cheque from the Accused and had inserted the said amount in the cheque. The Complainant also relied on the promissory note at Exh.PW1/A. 3. The Applicant/Accused examined herself as D.W.1 and stated that the Complainant had assisted her in opening the account in the Bank and had paid the initial amount of Rs.1000/- to open the said account. The Complainant had then asked her to sign on a cheque at Exh,PW1/B Colly by saying that he would then make the gold ornaments from out of the said amount. She further states that she was asked to sign on the promissory note also. She has further stated that she did not receive any legal notice from the Complainant. The learned Courts below on the appreciation of the evidence recorded a finding of guilt and passed the sentence as aforestated. In the Appeal, the learned appellate Court confirmed the conviction and sentence but reduced the amount of compensation from Rs.4,00,000/- to Rs.3,00,000-. 4. Miss Helen Fernandes, the learned Counsel appearing on behalf of the Applicant has urged that the presumption available to the Complainant in respect of the receipt of the notice under Section 27 of the General Clauses Act stood rebutted by the evidence of the Accused. Thus, according to the learned Counsel appearing on behalf of the Applicant/Accused the receipt - 4 - of the notice is not proved by the Complainant and, therefore, the Applicant/Accused is entitled to be acquitted. 5. The notice issued by the Complainant at Exh.PW1/C Colly came to be returned back unserved with the endorsement "returned to sender" after an intimation had been given to the Accused by the Postal Authorities. The Accused in her Statement under Section 313 of the Criminal Procedure Code in response to Question No. 5 had stated that as she was not present in her house she did not receive the notice. The Accused who examined herself as D.W.1 in her evidence had only stated that she had not received the notice. Thus, the presumption under Section 27 of the General Clauses Act was available at the trial regarding the due receipt of the notice by the Accused. It was, therefore, necessary for the Accused by evidence to rebut the said presumption. The Accused in her evidence had not stated anything about not having received the intimation or not being available in the house when the intimation was served. The Accused has only stated that she had not received the notice. This being the position, the presumption under Section 27 of the General Clauses Act does not stand rebutted. The evidence is woefully short of rebuttal of the presumption. Both the Courts below have addressed themselves to the evidence of the parties and on - 5 - appreciation of the evidence have recorded their finding. There is no perversity in the reasoning of the two Courts below to warrant any interference by disturbing the finding of fact recorded by the two Courts below. In view of this, I am not inclined to interfere with the conviction of the Applicant/Accused. 6. Miss Helen Fernandes, learned Counsel appearing on behalf of the Applicant has urged before me that the Applicant/Accused has undergone the substantive sentence of three months of Simple Imprisonment and has completed the said sentence on 9th December, 2003. Thereafter, the Applicant/Accused is at present undergoing the default sentence of six months Simple Imprisonment in respect of the non payment of the compensation awarded to the Complainant under Section 357(3) of the Criminal Procedure Code. The learned Counsel appearing on behalf of the Applicant has stated that the Applicant is a young widow having a minor daughter to support. She is a fisher woman who has to eke out her living by the daily sale of fish in the market. In such circumstances, it is urged before me that the default sentence of six months Simple Imprisonment be reduced to a period of three months Simple Imprisonment. It is also urged before me that the transaction relating to the issuance of the cheque is a shady transaction as the Complainant alleges to have advanced Rs.2,50,000/- in cash. - 6 - 7. Mr. S. R. Rivonkar, learned Counsel appearing on behalf of Respondent No.1 has by his strenuous arguments repelled the submissions of the learned Counsel appearing on behalf of the Applicant and has contended that no case at all is made out for interference. 8. Since, the two Courts below have recorded a finding of fact, it is not open for this Court to appreciate the evidence in respect of the transaction relating to the issuance of the cheque. It appears, however, that after the Judgment of the appellate Court, the Complainant was taken into custody and was sent to the Central Jail, Aguada to undergo the sentence. The Judgment of the appellate Court was challenged in the present revision but there was no prayer for bail and with the result that by the time this revision is taken up for hearing the Applicant has undergone the substantive sentence and more than 2 1/2 months of the default sentence of the payment of fine. The submission of the learned Counsel appearing on behalf of the Applicant for reduction in the default sentence merits some consideration. The Applicant is a widow who was aged 36 years in January, 2003 and would be aged about 37 years today. There is no serious challenge to the statement that she has a minor daughter to support and is - 7 - a fisher woman. In such circumstances, therefore, according to me, the interest of justice would be subserved by imposing default sentence of Simple Imprisonment instead of six months. 9. Accordingly, Criminal Revision Application No.60/2003 is partly allowed. The conviction, sentence for offence under Section 138 of the Negotiable Instruments Act, 1881, and the payment of compensation is maintained, however, the default sentence imposed by the learned Trial Court for non payment of compensation under Section 357(3) of the Criminal Procedure Code is reduced from six months Simple Imprisonment to three months Simple Imprisonment. With this modification in the default sentence only this revision is partly allowed. P. V. HARDAS, J. RD.