IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 CRL.REV.PET.NO. 410 OF 2001() -------------------------------------------- CRA.84/1999 OF II ADDL. SESSIONS COURT, PALAKKAD CC.161/1996 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: ------------------------------------------------------------ C.N. RAJAN, S/O. NAKELAN, PALLARODE KALAM, KANAKKANTHURUTHY, VADAKKENCHERRY, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. RESPONDENT(S) - RESPONDENT - COMPLAINANT: --------------------------------------------------------------- 1. M.A. SHAREEF, S/O.S. MUHAMMED KUTTY, SYED MANZIL, COURT ROAD, ALATHUR. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.R.VENKITESH FOR R1 SRI.P.R.VENKITESH BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.410 of 2001 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the day of June, 2009 O R D E R -------------- I heard learned counsel for petitioner and Public Prosecutor who took notice for respondent No.2. Respondent No.1 though served remains absent. 2. This revision is directed against judgment of learned Sessions Judge, Palakkad in Crl.Appeal No.84 of 199 confirming conviction and sentence on the petitioner under Section 138 of the Negotiable Instruments Act (for short “the Act”). According to respondent No.1, petitioner borrowed Rs.30,000/- from him and for the discharge of that liability issued Ext.P1, cheque dated 2.4.1996. Dishonour of the cheque for insufficiency of funds as contended by respondent No.1 is proved by Ext.P2. Issue of statutory notice on the petitioner intimating dishonour and demanding payment of the amount is proved by Ext.P3 series. That notice was returned unclaimed as seen from Ext.P4. Respondent No.1 gave evidence as P.W.1 and spoke to his case. According to the petitioner he had borrowed only Rs.15,000/- from respondent No.1 and later he repaid Rs.5,000/-. The signed blank cheque given at the time of borrowal CRL. R.P. No.410 of 2001 -: 2 :- has been misused. Courts below concurrently found in favour of due execution of the cheque and that there is due service of notice on petitioner. Learned counsel for petitioner contended that the finding of the courts below as to due execution of cheque is not correct. 3. So far as due execution of cheque is concerned, courts below on the evidence of P.W.1 found in favour of that. Petitioner admits that in connection with the borrowal of money he gave Ext.P1, cheque to respondent No.1. His dispute is regarding the amount borrowed and repaid. He did not adduce any evidence to show that the amount borrowed is only Rs.15,000/- or that he repaid any amount. Respondent No.1 has denied the suggestion in that line. Nothing is brought out to disbelieve the evidence of respondent No.1. I do not find reason to interfere with that finding. Petitioner has not rebutted the presumption under Sec.139 of the Act. 4. What remains for consideration is only regarding service of statutory notice. Exhibit P3, notice was issued by registered post. Exhibit P3(a) is the postal receipt. Learned magistrate has observed that there is no dispute regarding the correctness of address of petitioner given in Ext.P3 and that Ext.P4 revealed that intimation was given to the petitioner. I have perused Ext.P4 and it contains the CRL. R.P. No.410 of 2001 -: 3 :- endorsement of the postman that petitioner was intimated about the registered notice but it was not claimed and hence it is returned. That amounted to deemed service of notice. Section 27 of the General Clauses Act also comes in aid of respondent No.1. Learned magistrate observed that summons issued from that court to the petitioner in the address mentioned in Exts.P3 and P4 was received by the petitioner. Hence the contention that there is no proper service of notice cannot stand. Conviction does not required interference. 5. So far as sentence is concerned, it is contended by learned counsel for petitioner that it is excessive. Considering the facts of the case and object of legislation I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time petitioner has to compensate respondent No1. Revisional court is entitled to direct payment of compensation under Section 357(4) of the Code of Criminal Procedure. Exhibit P1, cheque is dated 2.4.1996. Thirteen years have elapsed. Considering these aspects I direct petitioner to pay a compensation of Rs.40,000/- to respondent No.1 within three months from this day failing which he shall undergo simple imprisonment for three months. Resultantly, revision is allowed in part to the following extent: CRL. R.P. No.410 of 2001 -: 4 :- (i) Substantive sentence awarded by the courts below is modified as simple imprisonment till rising of the court. (ii) Petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.40,000/- (Rupees Forty thousand only) as compensation within three months from this day failing which he shall undergo simple imprisonment for three months. (iii) If petitioner has deposited any amount in any of the courts below pursuant to the order of this Court that amount will be adjusted in the compensation directed to be deposited hereby. Petitioner shall appear in the trial court on 3.9.2009 to receive the sentence. Criminal Miscellaneous Petition No.1917 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL. R.P. NO.410 of 2001 =================== O R D E R 1ST JUNE, 2009