IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 Crl.Rev.Pet.No. 261 of 2002(C) ---------------------------------------- CRA.183/2000 of SESSIONS COURT, KOTTAYAM CC.511/1994 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------------------- K.S. SCARIAH, POTTENKULAM, PROPRIETOR, NEW INDIA RUBBERS, XV/257, AZAD LANE, KOTTAYAM-I. BY ADV. SRI.GEORGE THOMAS RAMAPURAM RESPONDENT(S): RESPONDENTS/COMPLAINANT: ------------------------------------------------------------------------ 1. THE TRANSPORT CORPORATION OF INDIA LTD., KOTTAYAM, REPRESENTED BY ITS ZONAL MANAGER PROMOD KUMAR JAIN, CC.38/92, T.D. ROAD, ERNAKULAM, COCHIN-II. 2. KERALA STATE REPRESENTED BY THE PUBLIC PROSECUTOR. ADV. SRI.T.V.GEORGE FOR R1 PUBLIC PROSECUTOR SRI.C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ CRL. R.P.No. 261 of 2002 ------------------------------ Dated this the 29th day of September, 2008 O R D E R First respondent, a Public Limited Company represented by its zonal manager (PW1) preferred complaint against revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as 'the Act'). Complaint is that a sum of Rs.21,434/- was due to the first respondent, for discharge of that debt the revision petitioner issued Exhibit P1, cheque dated 18/01/1994, that cheque was dishonored for insufficiency of funds and though notice intimating dishonour and demanding payment was sent to revision petitioner in his last known address, he successfully evaded service of notice. Courts below concurrently found that revision petitioner committed the offence under Section 138. Trial court sentenced revision petitioner to undergo R.I. for 3 months and to pay a fine of Rs. 25,000/-. Appellate court modified the sentence as imprisonment for 1 month. Sentence of fine was confirmed. Aggrieved and dissatisfied with the judgments of the courts below, the revision petitioner/accused has come in revision. CRL. R.P.No. 261/ 2002 2 2. Revision petitioner and counsel remained absent at the time of hearing. Heard counsel for first respondent and public prosecutor. 3. It is contented in the revision petition that it is not shown that cheque was drawn for the discharge of any debt or liability and that there was no proper notice served on revision petitioner as required under Section 138(b) of the Act. 4. I Perused the records. 5. PW1 who is Power of Attorney Holder and Zonal Manager of first respondent gave evidence regarding the transaction. Revision Petitioner in an attempt to show that Exhibit P1, cheque was issued to him for adjustment of business transaction, examined the zonal manager of Kottayam branch during the relevant time as DW1. DW1 referred to the nature of business dealings of the first respondent with its customers but in cross-examination asserted that amount as per Exhibit P1 was due to first respondent. Thus evidence adduced by both sides is consistent with the case of first respondent that revision petitioner issued cheque for discharge of the debt. CRL. R.P.No. 261/ 2002 3 6. I do not find any reason to interfere with the concurrent finding entered by the courts below. 7. Turning to the contention that there was no proper service of notice, contention is that notice was not served on revision petitioner. Exhibit P4 is the office copy of the notice dated 5/03/1994. Exhibit P5 is receipt for sending notice by registered post. Notice was not served on revision petitioner and it was returned. Returned cover is marked as Exhibit P6. It is seen from the endorsement on Exhibit P6 that the postman concerned conducted enquiry on several dates, the addressee was not known and hence it was returned. Though notice was sent to the revision petitioner in the address of his business concern at Kottayam, it is seen that postal authority had attempted service at some other places also and unable to serve, it was returned to the sender. Question is whether there is proper notice as contemplated under Section 138 (b). Learned counsel for first respondent placed reliance on the decisions in Madhu Vs.Omega Pipes Ltd. [1994(1) K.L.T. 441] and Viswanadhan Vs. Surendran [1998(1) K.L.T 694]. According to learned counsel, responsibility of first respondent was CRL. R.P.No. 261/ 2002 4 only to send notice to revision petitioner in his correct address within a reasonable time of dishonour and that responsibility has been discharged by the first respondent. It is also the submission of learned counsel that revision petitioner was deliberately avoiding service of notice. 8. I perused the address of revision petitioner given in Exhibit P6 and in the revision petition. The address is one and the same. Therefore, there is merit in the contention that first respondent had issued notice to revision petitioner in his correct address. Evidence of PW1 on behalf of the first respondent is in tune with averment in Para 3 of the complaint that revision petitioner deliberately avoided notice. That statement of PW1 was not touched in cross examination and therefore, I am to understand that the said statement of PW1 is not disputed. Moreover, going by the decisions relied by learned counsel and Section 94 of the Act, responsibility of the first respondent under Section 138 (b) of the Act was only to send the notice to revision petitioner in the correct, last known address. That has been done. Therefore, there is sufficient compliance of Section 138(b) of the Act. CRL. R.P.No. 261/ 2002 5 9. In the circumstances, the contention that there was no proper notice is untenable. Conviction is justified and no interference is required. 10. Considering the nature of offence involved and object of legislation, I am inclined to think that simple imprisonment till the rising of the court and direction to pay compensation is sufficient in the ends of justice. Revision Petition is allowed in part in the following lines; 1. Substantive sentence awarded to the revision petitioner is modified as simple imprisonment till the rising of the court. 2. Revision petitioner is directed to deposit in the trial court for payment to first respondent by way of compensation Rs.25,000/-(Rupees twenty five thousand only) within two months from this day failing which he shall undergo simple imprisonment for two months. 3. Fine if any, deposited will be adjusted in the compensation fixed hereby. CRL. R.P.No. 261/ 2002 6 4. Revision petitioner shall surrender in the trial court on 1/12/2008 to receive the sentence. Bail bond stands cancelled. THOMAS P. JOSEPH, JUDGE scm