IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 Crl.Rev.Pet.No. 381 of 2006(C) ----------------------------- CRA.1141/2003 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM CC.358/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O), ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUUSED. ------------------------------------------------------- JOHN JOSEPH, S/O.GEORGE, ANJIPPARAMBIL HOUSE, VENNALA, NOW RESIDING AT CARDINAL QUARTERS, THRIKKAKKARA, B.M.C. P.O. KAKKANAD, ERNAKULAM. BY ADV. SRI.J.DEVADANAM SRI.VINOD J.DEV SRI.PRAMOD J.DEV RESPONDENT(S)/RESPONDENT: COMPLAINANT AND ANOTHER. ------------------------------------------------------------------------ 1. K.A.HAMEED, KOLLAPPARAMBIL HOUSE, VENNALA P.O. ERNAKULAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER M.M.SALEEM, MUCHETH HOUSE, VAZHAKKALA, ERNAKULAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.V.SABU FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRIMINAL.R.P. NO. 381 OF 2006 = = = = = = = = = = = = = = = Dated this the 17th day of October, 2008. O R D E R This revision is preferred against the judgment of the 4th Additional Sessions Judge, Ernakulam in Crl.A.1141/05. The said appeal arose out of the conviction and sentence passed in C.C.358/99 of the Addl. Chief Judl. Magistrate, Ernakulam. The revision petitioner was convicted and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.3,10,000/- and in default to undergo simple imprisonment for one month. The matter when taken up in appeal, was dismissed by the appellate court. It is against that decision the present revision is preferred. 2. Heard the learned counsel for the revision petitioner as well as the respondent. It is the case of the complainant that the accused had borrowed a sum of Rs.3,00,000/- and towards discharge of the same, had issued a cheque drawn on South Indian Bank Ltd. which when presented for encashment returned with the Crl.R.P. NO. 381 OF 2006 -:2:- endorsement of insufficiency of funds. Therefore statutory notice was issued and on account of the non payment prosecution has been launched u/s 138 of the N.I. Act. 3. The case of the revision petitioner is that he was an employee under the complainant and there was some misunderstanding between the two and on the day when he went to the house of the complainant to deposit the chitty amount collected, he was restrained, manhandled and was forced to write a cheque and it is on the basis of that cheque action has been initiated. 4. In the trial court PW1 and DWs.1 to 6 were examined. Exts.P1 to P9 and D1 and D1(a) were marked. Both the Courts concurrently found against the revision petitioner on facts. The learned counsel for the revision petitioner has mainly argued on two points, one namely, the non receipt of notice and secondly lack of evidence regarding the transaction alleged in the complaint. 5. Let me first consider about the notice. Ext.P6 is the copy of the notice issued on 9.7.98 by Advocate K.V. Crl.R.P. NO. 381 OF 2006 -:3:- Sabu and it is addressed to Mr.John Joseph, son of George, Anjiparambil house, Vennala now residing at Cardinal Quarters, Thrikkakara, B.M.C.P.O. Exts.P7 and P8 would reveal that it was entrusted to universal couriers for service and Ext.P7 indicates that the revision petitioner had received notice. It is argued by the learned counsel that there is no address shown in the courier document and there has not been any tender of notice and therefore has disputed its existence. It can be seen from the notice, in the complaint as well as in the revision petition the very same address is given and therefore there is always a presumption that it has been duly tendered unless concrete rebuttable evidence is adduced against that. It has also come out in evidence that courier service was utilized for the reason that there was some postal strike at that point of time. It is a well settled proposition under the law if a letter is addressed with proper address there is a presumption of service and the Apex Court has even held that in such cases it is the duty of the addressee who is leaving out of the place to furnish these Crl.R.P. NO. 381 OF 2006 -:4:- details before the postal authorities for the purpose of serving notice in new address. But as stated by me earlier there is no such change of address in this case and address is exactly the same in all the documents and therefore the contention of the learned counsel for the revision petitioner that notice has not been received cannot be accepted. 6. Now, let me consider about the factual matrix. Sitting in revisional jurisdiction the power to re-appreciate evidence is limited and unless there is manifest illegality or mis appreciation it may not be proper for a revisional Court to substitute its views on the concurrent finding on facts. But for the sake of satisfaction I had gone through the evidence of PW1 and the evidence of defence witnesses. PW1 is the power of attorney holder of the complainant. It is a settled proposition of law that the power of attorney holder is not competent to give evidence with respect to the matter unless he is personally aware of the transaction. Here a reading of the evidence of PW1 would reveal that he had personal knowledge about the transaction and his Crl.R.P. NO. 381 OF 2006 -:5:- acquaintance with the complainant is even put in cross- examination in the form of a question that he along with the complainant had restrained the accused in this case. It is true that he is not able to give minutest details asked for with respect to the other transactions of the complainant. That is not possible at any rate and therefore I find the evidence of PW1 who has got personal knowledge has been properly analysed by the Courts below. 7. Regarding the accused, namely the revision petitioner, only his wife had been examined and what she has deposed about the cheque according to herself is only hearsay. She does not have any personal knowledge. The other witnesses are examined just to establish that the revision petitioner was working as an employee of the complainant. The crux of the case is regarding the execution of the cheque. Suppose a person is wrongfully restrained and he is made to execute a cheque necessarily he would have approached appropriate authorities for redressal of the grievance. There is no other case for the revision petitioner Crl.R.P. NO. 381 OF 2006 -:6:- in this case. Secondly the case of the revision petitioner is that he had gone to the house of the complainant when he was restrained and forced to write a cheque. One cannot accept the story that this man will always carry a cheque-leaf with him so as to sign it and give it to the complainant. So the evidence tendered is not trustworthy. I am conscious of the fact that u/s 315 Cr.P.C. the accused shall not be compelled to give evidence and one is not expected to pick holes on them. But at the same time it has been held in catena of decisions that when evidence is adduced by both sides it is the preponderance of probabilities that is to be looked into to arrive at the credibility of the evidence. 8. So far as Ext.P1 cheque is concerned PW1 who has been associated with the complainant and who was present at the time of the transaction had given evidence regarding its execution and therefore execution of Ext.P1 stands proved. When it is proved then there is a presumption under the provisions of the N.I.Act which of course is rebuttable. But the rebuttable evidence is not Crl.R.P. NO. 381 OF 2006 -:7:- satisfactory so as to discharge the burden cast on the person who denies the same. Therefore on an analysis of the entire materials I have no hesitation to hold that there was a proper service of notice and that the complainant had satisfactorily established the case of execution of the cheque, presentation of the cheque for encashment, return of cheque for insufficiency of funds and compliance of other statutory requirements under the N.I.Act. Therefore the conviction passed by both the Courts below has to be confirmed. 9. Now on the question of sentence. Learned counsel for the revision petitioner requests for leniency on the sentence. If there is a mind to pay the amount he need not be unnecessarily send to jail. Therefore I am inclined to show leniency in modifying the sentence by reducing it to one till the raising of the Court and alter the compensation u/s 357(3) to one as fine with a direction to pay the amount to the defacto complainant. In the result the revision is disposed of as follows: Crl.R.P. NO. 381 OF 2006 -:8:- (1) The conviction u/s 138 of the N.I. Act is confirmed. (2) The revision petitioner is sentenced to undergo simple imprisonment till the raising of the Court and to pay a fine of Rs.3,00,000/- which on realisation shall be paid to the defacto complainant. In the event of any default the revision petitioner shall undergo simple imprisonment for a period of one month. He is directed to appear before the trial court for receiving the sentence on 14.1.09 and also to pay the fine. In default of it, the trial court is directed to execute the sentence. M.N. KRISHNAN, JUDGE. ul/-