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. 2364 OF 2009() --------------------------------------------- CRA.102/2009 OF ADDL.SESSIONS COURT, PARAVUR ST.3853/2004 OF JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER(S) - APPELLATE - ACCUSED: ------------------------------------------------------------- K.N.UNNIKRISHNA MENON AGED 63, S/O.NARAYANAPILLAI KARUSSERIL HOUSE, PALLOM PO,KOTTAYAM MASLEE, DSC INS VENDURUTHY,NAVAL BASE,COCHIN NOW RESIDING AT KUNNATHUVALLAPIL HOUSE, THORUVOOR KARA, CHELAKARA. BY ADV. SRI.JAISON JOSEPH RESPONDENT(S) - COMPLAINT & STATE: -------------------------------------------------- 1. BABU V.P AGED 44, S/O.PARAMESWARAN, VALANCHERY HOUSE,MOOKKANNOOR PO,ERNAKULAM DIST. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN 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.2364 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 Judge (Adhoc-III), North Parur in Crl. Appeal No.102 of 1999 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 20.4.2004. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Respondent No.1 issued notice to the petitioner by registered post intimating dishonour and demanding payment. That notice was returned unclaimed. Respondent No.1 gave evidence as P.W1 and testified to his case and examined P.W2 who also supported the transaction and issuance of the cheque. Petitioner claimed that himself and respondent No.1 had joint real estate business and that the signed blank cheque given to respondent No.1 in connection with that business was misused. He also contended that he was not served with the statutory notice. Regarding execution of the cheque CRL.R.P. No.2364 of 2009 -: 2 :- there is evidence of P.Ws.1 and 2. Though petitioner contended that he had given signed blank cheque in connection with the joint business there is no evidence of any such joint business or handing over signed blank cheque. Courts below observed that there is no reason to disbelieve the evidence of P.Ws.1 and 2. Hence finding of courts below regarding execution of the cheque does not require interference. 2. So far as service of intimation to the petitioner about registered notice is concerned, he claimed that since 25 years he is residing at Chelakkara. Exhibit D1(a) is the summons issued to petitioner from the court of learned magistrate and Ext.D1 is the postal cover in which it was sent. Based on Ext.D1 and D1(a) it was contended that petitioner was not residing in the address stated in Exts.P4 and P5. In Ext.P4, address of petitioner is given as if he is residing at Kottayam. It is also stated in Ext.P4 that addressee was continuously absent and hence notice was redirected to the office address of the petitioner at Naval Base, Kochi. Petitioner did not dispute that during the relevant time he was working at Naval Base, Kochi. Endorsement of Postman on Ext.P4 is that in the redirected address intimation was given, petitioner remained absent continuously CRL.R.P. No.2364 of 2009 -: 3 :- and hence notice was returned to the sender. 3. Assuming that house address of petitioner given in Exts.P4 and P5 is not correct, notice was redirected to his office address and every effort was made to serve the notice in that address. Intimation also was given in that address. If petitioner were out of station for some reason or other, he should have made alternative arrangements to receive the correspondence on his behalf. Obligation of respondent was to send the notice in the correct address which he has done. Courts below held that there is deemed service on petitioner. I find no reason to differ. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three moths. Petitioner was directed to pay compensation of Rs.3,00,000/- to respondent No.1 Default sentence of imprisonment for two months was also provided. Appellate court retained the substantive sentence as such but converted the compensation into fine of Rs.3,00,000/- with default sentence of imprisonment for one month. 5. Learned counsel requested that substantive sentence may be modified, fine may be converted as compensation and petitioner may be permitted to pay the compensation directly to respondent CRL.R.P. No.2364 of 2009 -: 4 :- No.1. It is submitted that petitioner met with an accident recently and that his wife is undergoing treatment for cancer. Wife is in an advanced stage of illness. Learned counsel requested six months’ time to deposit the compensation. Having regard to the nature of offence and amount involved I am inclined to modify the substantive sentence as simple imprisonment till rising of the court and payment of compensation as ordered by the trial court. Considering the circumstances stated by learned counsel petitioner is granted time till 30.12.2009 to deposit the compensation. Resultantly, this revision petition is allowed in part to the following extent: (i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Sentence of fine is set aside and instead petitioner is directed to deposit Rs.3,00,000/- (Rupees Three lakhs only) as compensation in the trail court for payment to respondent No.1 under Sec.357(3) of the Code on or before 30.12.2009 failing which petitioner shall undergo simple imprisonment for two CRL.R.P. No.2364 of 2009 -: 5 :- months. (iii) It is made clear that it shall be sufficient compliance with the direction for deposit of compensation if petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the said period. 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