IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 CRL.REV.PET.NO. 2339 OF 2009() ------------------------------------------ CRA.2/2005 OF ADDL. SESSIONS COURT (ADHOC), KOLLAM CC.290/2000 OF CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------------------- KUNJUKRISHNA PILLAI, S/O.NARAYANA PILLAI PRADEEP VIHAR, EDAVATTAM, VELLIMON P.O., KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.K.P.SUJESH KUMAR SRI.K.N.SASIDHARAN NAIR SMT.SANDHYA RADHAKRISHNAN SRI.LEO GEORGE RESPONDENT(S): STATE AND COMPLAINANT ---------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. N.SODHARAN, KUNJU VEEDU, KAVAL, KOLLAM-12. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO. 2339 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of July, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-I), Kollam in Crl.Appeal No.22 of 2002 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.2, petitioner borrowed Rs.2,00,000/- from him on 8.6.1999 and issued Ext.P5, cheque dated 10.8.1999 for repayment of that amount. Cheque when presented was returned as account was closed. Ext.P1, dishonour memo is produced in proof of the same. Statutory notice was issued to the petitioner as seen from Exts.P2 and P3 which was returned as unclaimed as seen from Ext.P4. Respondent No.2 gave evidence as P.W.1 and stated to the transaction leading to execution of the cheque. Apart from vaguely suggesting to respondent No.2 that there was no such transaction or execution of the cheque petitioner had no specific case to be pleaded when questioned under Section 313 of the Code of Criminal Procedure. Learned counsel contended that it is not shown that cheque was drawn on the account maintained by petitioner and CRL. R.P. No.2339 of 2009 -: 2 :- that at any rate there is no service of notice on petitioner. 2. It is not disputed that Ext.P5 contained the signature of petitioner. Exhibit P1 shows that cheque was returned as account was closed. Section 146 of the Act permits the court to presume from a memo of dishonour or slip issued from the bank that cheque is dishonoured for the reason stated in such memo or slip. In this case cheque is dishonoured as account was closed. In other words it is evident from Ext.P1 that cheque drawn on the account which was maintained by the petitioner was dishonoured as account was closed. As per the banking practice when an account is closed by or at the instance of the holder of the account or at the instance of the banker the balance amount if any outstanding in the account will be returned to the holder of the account or if he is not alive to his nominee or other legal representative. Same situation happens when account is closed on account of insolvency of holder of the account. Therefore when the cheque is dishonoured as account is closed it means that there was no amount standing to the credit of the holder of the account in such account to honour the cheque. 3. So far as the contention that there is no service of notice is concerned that contention stems from the address of the petitioner CRL. R.P. No.2339 of 2009 -: 3 :- given in Ext.P4, returned cover. Post office of petitioner is stated as 'Chandanathoppe' but that was scored off and instead 'Vellimon' is written. Learned magistrate observed that in the complaint preferred and bail bond executed by petitioner the place of residence of petitioner is shown as 'Vellimon'. I find similar description of the petitioner in the revision petition also. It is therefore clear that notice was redirected to the petitioner in his correct address. Moreover endorsement on Ex.P4 also is to the effect that intimation was given to the petitioner. Hence it is idle to contend that he had no information about the registered postal article. There is deemed service of notice on petitioner. On going through the judgments under challenge and hearing counsel I find no reason to interfere with the conviction of petitioner. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. Petitioner was directed to pay Rs.2,15,000/- by way of compensation to respondent No.2 and a default sentence of imprisonment for three months was also provided. Appellate court did not interfere with the sentence, direction for payment of compensation or the default sentence. Counsel for petitioner requested that leniency may be shown in the matter of CRL. R.P. No.2339 of 2009 -: 4 :- sentence and that six months’ time may be granted to the petitioner deposit compensation. Counsel states that on account of financial difficulties petitioner is unable to raise the amount immediately. Having regard to the nature of offence and object of legislation, I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is however no reason to interfere with the direction for payment of compensation or default sentence. Petitioner is granted time till 30.12.2009 to deposit compensation. Resultantly, this revision is allowed in part to the following extent: (i) Substantive sentence is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted time till 30.12.2009 to deposit/pay compensation in the trail court as ordered by the learned magistrate. In case of failure he has to undergo simple imprisonment for three months (iii) It is made clear that it shall be sufficient compliance of the direction for payment of compensation if petitioner paid the compensation to respondent No.2 through his CRL. R.P. No.2339 of 2009 -: 5 :- counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the said period period. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any, against the petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv