IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 Crl.Rev.Pet.No. 3520 OF 2008() ------------------------------ CRA.221/2007 OF SESSIONS COURT, THIRUVANANTHAPURAM ST.82/2006 OF JUDL. FIRST CLASS MAGISTRATE COURT-IV, THIRUVANANTHAPURAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ------------------------------- OMANA THOMAS, D/O.IDICULA,PNRA-F-47, PEROOR NAGAR, KOWDIAR, THIRUVANANTHAPURAM. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. SAMUVEL MATHEW, PENIEL, BABUJI NAGAR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3520 OF 2008 ------------------------------------------ Dated this the 3rd day of November, 2008 O R D E R Petitioner is the accused and first respondent the complainant in S.T. 82 of 2006 on the file of Judicial First Class Magistrate, Thiruvananthapuram. Case of the first respondent was that petitioner borrowed Rs.35,000/- and towards its repayment issued Ext.P1 cheque dated 30.6.2002 drawn in his account and when the cheque was presented for encashment, it was dishonoured under Ext.P2, for want of sufficient funds. First respondent sent Ext.P4 notice demanding the amount covered by Ext.P1 cheque in the correct address of the petitioner under registered post evidenced by Ext.P5. Petitioner did not pay the same on receipt of notice and thereby committed an offence under section 138 of Negotiable Instruments Act. Petitioner appeared before learned Magistrate and pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P5 were marked. Learned Magistrate on the evidence found him guilty. He was convicted and sentenced to simple imprisonment for two months and a compensation on Rs.35,000/- and in default simple imprisonment for one month under section 357(3) of Cr.P.C. Petitioner challenged the conviction and sentence CRRP3520/08 2 before Sessions Court, Thiruvananthapuram in Crl. Appeal 221 of 2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of Court and fine of Rs.35,000/- and in default simple imprisonment for three months. On realisation of fine it was directed to be paid to first respondent as compensation under section 357(1) of Cr.P.C. Petitioner is challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that there is no evidence to prove that petitioner received the notice sent and so conviction of the petitioner for the offence under section 138 of N.I. Act is not sustainable. Learned counsel submitted that in any case petitioner may be granted some more time to pay fine. 4. Evidence of PW1 was properly appreciated by learned Magistrate and learned Sessions Judge. It is proved by the evidence of PW1 that Ext.P1 cheque was issued towards repayment of Rs.35,000/- borrowed by him earlier. Evidence also establish that Ext.P1 cheque was dishonoured for want of sufficient funds. It is also proved that within the statutory period, first respondent sent Ext.P4 notice in the correct address of the revision petitioner by registered post and demanded the CRRP3520/08 3 amount covered by Ext.P1 cheque. Though the postal acknowledgement was not produced, evidence of PW1 establish that notice was not returned unserved. As rightly found by the Courts below, when a notice is sent by registered post in the correct address of the revision petitioner, the presumption is that it was served on the petitioner as it was not returned back. Petitioner did not pay the amount. He has no case that he could not pay or did not pay as he did not receive the notice. In such circumstances conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. 5. Then the question is regarding the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of Court and a fine of Rs.35,000/- and in default simple imprisonment for three months. Ext.P1 cheque is for Rs.35,000/-. Fine is also only for that amount. In such circumstances no interference in the sentence is also warranted. Revision is dismissed. Petitioner is granted two months time from today to pay the fine. Petitioner is directed to appear before the Magistrate on the expiry of two months from today. M. SASIDHARAN NAMBIAR, JUDGE Okb/-