IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 CRL.REV.PET.NO. 2395 OF 2009() ---------------------------------------------- CRA.71/2005 OF ADDL.SESSIONS COURT (ADHOC)-IV, TRIVANDRUM CC.682/2003 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: -------------------------------------------------------------- M. SHAMSUDEEN, SHABEEN MANZIL, (STATED IN THE JUDGMENT AS SHAHANA MANZIL) CHILAKOOR DESOM, VARKALA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.PRAKASH P.GEORGE SRI.B.PREMNATH RESPONDENT(S) - RESPONDENTS - COMPLAINANT & STATE: --------------------------------------------------------------------------- 1. THAJUDEEN, SON OF ALI AQBAR, JALEESA MANZIL CHILAKOOR DESOM, VARKALA VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2395 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of July, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Jude, Fast Track (Adhoc-IV), Thiruvananthapuram in Crl. Appeal No.71 of 2005 confirming conviction of petitioner but modifying sentence for offence punishable under Section 138 of the Negotiable Instruments Act. Case arose on a private complaint preferred by respondent No.1. He alleged that petitioner owed Rs.3,00,000/- and for repayment of that amount issued Ext.P1, cheque dated 20.1.2003. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2. According to respondent No.1 he issued statutory notice and it was served on the petitioner. To prove issue and service of notice respondent No.1 produced Exts.P4 and P5. Petitioner denied execution of the cheque and that he got the notice. Courts below found against petitioner and held him guilty. 2. So far as execution of cheque is concerned respondent No.1 gave evidence as P.W.1. Case of petitioner is that he gave signed blank cheque to Akbar Sha in connection with chitty transaction and that cheque has been misused. Petitioner gave evidence as D.W.1 and testified to his case. Courts below were not impressed by that CRL. R.P. NO.2395 of 2009 -: 2 :- evidence and found him guilty. There is no evidence apart from the interested version of petitioner that Ext.P1 in signed blank form was handed over to Akbar Sha. The said Akbar Sha was not examined. There was nothing to disbelieve the evidence of respondent No.1. It is in the above circumstances that courts below found in favour of due execution of the cheque. I find no illegality, irregularity or impropriety in the appreciation of evidence or finding entered by the courts below requiring interference in revision. 3. To prove that statutory notice was not served on petitioner, he produced Exts.D1 to D3. Exhibit D1 is the pass book and Ext.D3 is the photocopy of an insurance certificate. Exhibit D2 is the copy of electoral card. So far as Exts.D2 and D3 are concerned, marking of the same was objected by respondent No.1 as photocopies are not properly attested. Under Section 63 of the Indian Evidence Act copies obtained by mechanical process from original can be received as secondary evidence when accuracy of that can be assured. In this case there is no such assurance of accuracy of Exts.D2 and D3. So far as Ext.D1 is concerned, a different address of petitioner is given therein as against the address given in Exts.P4 an P5. But petitioner when examined as D.W.1 admitted that the CRL. R.P. NO.2395 of 2009 -: 3 :- address stated in Ext.P5 is in respect of wife’s house where he has been residing. In Ext.P5, house name is given as 'Shahana Manzil' which was disputed by petitioner. But it has come in evidence that 'Sabeena' is the name of his wife and according to D.W.1, house name of the wife is 'Sabeena Manzil'. There is no discrepancy as regards the address given in Ext.D1 with the respective address of the wife’s house of the petitioner is concerned. It has also come in evidence that petitioner has a daughter by name 'Shahana'. According to respondent No.1, petitioner’s house is named after the said Shahana as 'Shahana manzil'. It is seen that the endorsement on Ext.P5 is also to the effect that petitioner was given intimation. That endorsement is made by the postman in the course of his official duty. Its regularity has to be presumed. Petitioner has not taken steps to show that the endorsement is not correct. It is in the above circumstances that courts below found in favour of deemed service of notice. In the light of the evidence on record which I have stated above there is no reason to interfere with the said finding. 4. Learned Additional Sessions Judge has modified the substantive sentence as simple imprisonment till rising of the court. But the direction for payment of compensation was confirmed. CRL. R.P. NO.2395 of 2009 -: 4 :- Having regard to the nature of the offence and amount involved there is no reason to interfere with the sentence as modified, the direction for payment of compensation and the default sentence as confirmed by the appellate court. 5. Learned counsel requested six months’ time to deposit the compensation in the trail court. He highlighted the difficulties experienced by the petitioner to arrange funds. Having regard to the circumstances stated by learned counsel I am inclined to grant time till 30.12.2009. Resultantly this revision petition fails. It is dismissed. Petitioner is granted time till 30.12.2009 to deposit the compensation in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv