IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 Crl.Rev.Pet.No. 1068 of 2003 ---------------------------------------------- CRA.637/2001 of ADDL. SESSIONS COURT (ADHOC-II), ERNAKULAM CC.5/2000 of JUDL.MAGISTRATE OF FIRST CLASS-III(MOBILE), ERNAKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: JEEMON P. ABRAHAM, PROPRIETOR, MIP ELECTRONIC AGENCIES, DOOR NO. 39/3879, MEDICAL TRUST BUILDING, PALLIMUKKU, ERNAKULAM SOUTH, COCHIN-16 BY ADV. SRI.R.HARIKRISHNAN SRI.C.HARIKUMAR SRI.N.C.SAJITH SMT.R.REMA RESPONDENTS/COMPLAINANT AND STATE: 1. K.V.JACOB, SON OF VARGHESE, KUMBALATHUMTHARAYIL HOUSE, KANDANAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECTUROR, ERNAKULAM. BY ADV. SRI.A.K.CHINNAN FOR R1 SMT.SUSAL A. CHINNAN FOR R1 PUBLIC PROSECUTOR SMT.PUSHPALATHA FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P. 4034/2003 IN CRRP 1068/2003 DISMISSED 6.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1068 of 2003 -------------------------- ORDER Petitioner, the accused in C.C.No.5/2000 on the file of Judicial First Class Magistrate's Court- III, Ernakulam, filed this revision challenging the concurrent conviction and sentence. First respondent lodged the complaint before the Magistrate alleging that petitioner, for his business, borrowed Rs.2,80,000/- and towards its repayment, issued five cheques and Exhibit P1 cheque for Rs.75,000/- is one among the cheques issued by the petitioner in the account maintained by him in the bank and when the cheque was presented for encashment, it was dishonoured for the reason of “insufficient funds and account closed”. It was intimated under Exhibits P2 and P3 to the first respondent. First respondent sent the original of Exhibit P8 notice to the petitioner at his official address as well as in the residential CRRP 1068/03 2 address, evidenced by Exhibit P4 series postal receipts and when the postal acknowledgment cards were not received back, the counsel, who sent the notices, sent Exhibit P5 complaint to the postal authorities, for which, Exhibit P7 reply was received stating that both the notices were served on the petitioner. But, he failed to pay the amount. Therefore, it is alleged that petitioner committed the offence under Section 138 of Negotiable Instruments Act. 2. Learned Magistrate took cognizance of the offence. Petitioner pleaded not guilty. First respondent examined himself as PW1 and the Manager of the Bank as PW2 and Post Masters as PWs 3 and 4 and marked Exhibits P1 to P10. Petitioner was examined as DW2 and the Manager of the Bank was examined as DW1 and Exhibit D1, the ledger folio of his bank account, was also marked. 3. Learned Magistrate, on the evidence, found that Exhibit P1 cheque was issued by the petitioner towards discharge of an existing liability and it CRRP 1068/03 3 was dishonoured as the account was closed subsequent to the issuance of the cheque and Exhibit P8 notice was served on the petitioner, but he failed to pay the amount and petitioner, thereby, committed the offence under Section 138 of Negotiable Instruments Act. He was sentenced to simple imprisonment for three months and a compensation of Rs.50,000/-. Though petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.No.637/2001, learned Additional Sessions Judge, on re- appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 4. Learned counsel appearing for the petitioner and first respondent were heard. 5. Learned counsel appearing for the petitioner challenged the conviction and sentence on the ground that no notice as provided under Section 138 (b) of Negotiable Instruments Act was served on the petitioner. Argument of the learned counsel is that CRRP 1068/03 4 there is no evidence to prove that a notice demanding the amount covered by the dishonoured cheque was served on the petitioner within the statutory period and therefore, the conviction is bad. 6. Learned counsel appearing for the first respondent pointed out that Exhibit P4 series postal receipts with Exhibit P8, the office copy of the notice, establish that notice swere sent by registered post in the correct address of the petitioner to his office as well as to the residence and Exhibit P7 reply received from the postal authorities establishes that both the notices were served on the petitioner and therefore, the contention is only to be rejected. 7. Learned Magistrate and learned Additional Sessions Judge appreciated the evidence in the proper perspective. Though it is contended that Exhibit P1 cheque was issued only as a security, on the evidence of PW1 and DW1, courts below rightly found that Exhibit P1 cheque was issued towards CRRP 1068/03 5 repayment of Rs.75,000/- borrowed. Evidence also establish that the cheque was dishonoured as there was no sufficient amount in the account and the account was closed before its dishonour. The only question is whether first respondent has complied with the provisions of Sections 138(b) of Negotiable Instruments Act. 8. Section 138(b) of Negotiable Instruments Act mandates that the payee has to demand the amount covered by the dishonoured cheque in writing from the drawer of the cheque. The drawer of the cheque has to pay the amount covered by the cheque within fifteen days of receipt of the demand. So also, the complaint is to be filed within thirty days from the date of cause of action. The cause of action would arise on the expiry of fifteen days from receipt of the demand in writing. Exhibit P8 is the office copy of the notice sent through the counsel by the first respondent. Exhibit P4 series of postal receipts establish that notices were sent in the official address as well as in the CRRP 1068/03 6 residential address of the petitioner by registered post. Though the postal acknowledgment cards were not received, Exhibit P5 letter sent by the counsel establishes that he has complained about non receipt of the postal acknowledgment cards. Exhibit P7 reply establishes that an enquiry was conducted on receipt of Exhibit P5 complaint and the Deputy Superintendent intimated the Senior Superintendent, R.M.S., Ernakulam Division that both the registered notices, which were registered as 2607 and 2608, were delivered respectively on 16.6.1998 and 13.6.1998. By Exhibit P7, the counsel appearing for the first respondent was intimated that the registered notices were delivered on 16.6.1998 and 13.6.1998. In spite of Exhibit P7 reply, when examined as DW2, petitioner did not depose that he did not receive the registered notices sent under Exhibit P4 series of postal receipts or that the information furnished to the counsel for the first respondent that notices were properly served on the petitioner is not correct. In such circumstances, CRRP 1068/03 7 it is futile for the petitioner to contend that no notice was served on him. Evidence establishes that in spite of receipt of notice, petitioner did not pay the amount. In such circumstances, conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 9. Then the only question is regarding the sentence. Learned counsel appearing for the first respondent submitted that the total amount borrowed is Rs.2,80,000/-. Though Exhibit P1 cheque is for Rs.75,000/-, the balance was also not received, as the account was closed. Learned counsel appearing for the petitioner submitted that the cheque is for Rs.75,000/- alone and in the interest of justice, the sentence be modified awarding proper compensation to the first respondent. Considering the entire facts and circumstances of the case, interest of justice will be met if the sentence is modified to imprisonment till rising of court and adequate compensation to the first respondent. CRRP 1068/03 8 Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of court and a compensation of Rs.80,000/- and in default, simple imprisonment for three months. Petitioner is directed to appear before Judicial First Class Magistrate-III, Ernakulam on 11.08.2010. If petitioner has deposited any amount before the Magistrate as directed by this Court, while suspending the sentence, he need deposit only the balance amount and first respondent is entitled to withdraw the amount in deposit. The Magistrate is directed to execute the sentence. 6th July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1068/03 9 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1068 of 2003 -------------------------- ORDER 6th July, 2010