IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 CRL.REV.PET.NO. 2030 OF 2009() --------------------------------------------- CRA.111/2008 OF ADDL.SESSIONS COURT, KOTTAYAM ST.192/2007 OF JUDL. MAGISTRATE OF FIRST CLASS, CHENGANACHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------------------- T.K.UNNIKRISHNAN, S/O.KRISHNAN NAIR, THAZHAPPALLIL HOUSE, NEELAMPEROOR P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.SHAIJAN C.GEORGE SRI.JOHN VARGHESE RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------------------------------------ 1. P.S.GOPINATHA KAIMAL, PADMA VIHAR, NEELAMPEROOR P.O., NEELAMPEROOR 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2030 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of June, 2009 O R D E R -------------- Petitioner is challenging the concurrent finding entered by the courts below regarding execution of a cheque for the discharge of a legally enforceable debt/liability. Case arose on a private complaint preferred by respondent No.1. He claimed that petitioner issued the cheque for discharge of an existing debt. He presented the cheque for encashment but it was dishonoured for insufficiency of funds. Respondent No.1 gave evidence as P.W.1 and testified to his case. Exhibit P1 is the cheque in question. Its dishonour for the reason stated above is proved by Exts.P1 to P3, P7 and P8. Statutory notice was issued to the petitioner. It is seen that notice was returned unclaimed in spite of giving intimation to the petitioner. There is no dispute that notice was issued to the petitioner in his correct address. When notice is issued in the correct address by registered post the presumption is that it reached the addressee. In this case Ext.P6 shows that in spite of giving intimation about the registered notice petitioner did not claim it and it was returned unclaimed. That amounted to deemed service of notice on the petitioner. 2. So far as execution of the cheque is concerned, CRL. R.P. No.2030 of 2009 -: 2 :- respondent No.1 gave evidence as P.W.1. He stated that he lent Rs.4,00,000/- to the petitioner. About the source of money he claimed that he got Rupees three lakhs from his nephew and the balance Rupees One lakh was with him. According to the petitioner he borrowed Rs.50,000/- in the year, 2004 and gave a signed blank cheque as security. He returned the amount on 12.1.2005 but the cheque was not returned to him. 3. It is not disputed by the petitioner also that he had financial transaction with respondent No.1. He borrowed money from respondent No.1 and gave a cheque in connection with that transaction. Dispute is regarding the date of transaction and the amount borrowed. That, notice issued on behalf of respondent No.1 was returned as unclaimed indicate that petitioner was aware of the nature of the claim being made by respondent No.1. There is no evidence to show that petitioner had borrowed only Rs.50,000/- from respondent No.1. There is also no evidence to show that after such repayment petitioner demanded respondent No.1 to return the cheque. What is available is only some suggestions made to respondent No.1. Nothing is brought out to disbelieve the evidence of P.W.1 regarding the transaction and execution of cheque. Courts below did not accept the contention raised by the petitioner and found in favour of respondent No.1 regarding due execution of cheque. I do CRL. R.P. No.2030 of 2009 -: 3 :- not find reason to interfere with the same in revision. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for one month. He was also sentenced to pay fine of Rs.4,00,000/-. It was further directed that fine if realised, will be given to respondent No.1 as compensation. Sentence of one month's simple imprisonment for non-payment of fine was also provided. Appellate court modified the substantive sentence as simple imprisonment till rising of the court. Appellate court confirmed the sentence of fine but provided two months' default sentence for non- payment of fine. It was also directed that fine if realised shall be paid to respondent No.1 as compensation under Section 357(1) of the Code of Criminal Procedure. 5. Learned counsel for petitioner requested that fine may be converted as compensation and petitioner may be permitted to pay the same directly to respondent No.1. Counsel also requested that six months' time may be granted to the petitioner to pay the compensation. 6. Considering the nature of the offence and object of legislation instead of sentencing the petitioner to pay fine, he can be directed to pay compensation to respondent which can be fixed as Rs.4,00,000/-. Petitioner, considering the difficulties expressed by the learned counsel, is granted four months' time to pay the CRL. R.P. No.2030 of 2009 -: 4 :- compensation in the trial court. There is no reason to interfere with the substantive sentence as modified by the appellate court. Resultantly, this revision is allowed in part to the following extent: (i) While retaining the substantive sentence awarded by the appellate court, sentence of fine is set aside. Petitioner is directed to pay Rs.4,00,000/- (Rupees Four lakhs only) as compensation to respondent No.1 under Sec.357(3) of the Code of Criminal Procedure. (ii) Petitioner is granted four months' time from this day to deposit Rs.4,00,000/- (Rupees Four lakhs only) in the trial court for payment to respondent No.1. In case of default, he shall undergo simple imprisonment for two months. (iii) It is made clear that it shall be sufficient compliance of condition (ii) 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 the compensation within the said period of four months. Petitioner shall appear in the trial court on 27.10.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv