IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 Crl.Rev.Pet.No. 1972 of 2009() ------------------------------ CRA.31/2005 of ADDL.DISTRICT AND SESSIONS COURT FAST TRACK COURT(ADHOC)-II (IN CHARGE), KOTTAYAM CC.484/2003 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------ BINOY VARGHESE, S/O.K.T.VARGHES AGED 44 YEARS, R/AT KALATHIPARAMBIL (H) MANARCADU PO MANARCADU VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.TOM JOSE RESPONDENT(S)/RESPONDENT/COMPLAINANT AND STATE: --------------- 1. T.C.THOMAS, THEKKEL HOUSE, PUTHUPALLY PO,KOTTAYAM. 2. STATE OF KERALA R/BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 SRIT.R.MOHANAKUMAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1972 of 2009 -------------------------------------- Dated this the 29th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional District and Sessions Judge, Fast Track Court (Adhoc)-II(in charge), Kottayam in Crl.Appeal No.31 of 2005 confirming conviction but modifying the sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). Case arose on a private complaint preferred by respondent No.1. He alleged that petitioner owed Rupees two lakhs to him and for discharge of that liability issued Ext.P1, cheque dated 10.6.2003.. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2, memo dated 21.6.2003. On getting information about dishonour as per Ext.P3 dated 26.6.2003 respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Exts.P4 and P5 are produced to show issue of notice to the petitioner by registered post. Ext.P6 is the returned cover. Intimation was given to the petitioner about registered notice but it was not claimed and hence returned. Respondent No.1 gave evidence as PW1 and testified to his case. He claimed that petitioner borrowed Crl.R.P.No.1972/2009 2 Rupees two lakhs from him and issued the cheque for repayment of that amount. Petitioner contended that he had taken Rupees one lakh from one Kuriakose and issued a signed blank cheque. He repaid Rs.40,000/- and the balance amount payable to the said Kuriakose is Rs.60,000/-. That cheque was misused by respondent No.1. 3. Issue of statutory notice is proved by Exts.P4 and P5. It is not disputed that notice was issued to the petitioner in his correct address. The presumption is that when notice is issued by registered post in the correct address it reached the address. Ext.P6 shows that notice was returned unclaimed though, intimation was given to the petitioner. Endorsement on Ext.P6 is not shown to be incorrect and hence there is deemed service of notice on petitioner. 4. What remained for consideration is whether due execution of the cheque is proved. I refer to the evidence of respondent No.1 as PW1. PW1 is engaged in financing business. He denied that he was only a collection agent of Kuriakose and that cheque in question was given to him by the said Kuriakose. As to that contention of petitioner what is available is only the suggestion put to respondent No.1 which he denied. There is no evidence or circumstance to hold that respondent No.1 got custody of the cheque in the circumstances pleaded by the petitioner. Though, petitioner cited Kuriakose as a witness to be examined on his side, summons and warrants issued were not fruitful. Hence examination of the said Kuriakose was dispensed with. There is no reason to Crl.R.P.No.1972/2009 3 disbelieve the evidence of respondent No.1. That, petitioner did not accept the notice issued on behalf of respondent No.1 shows that he was aware of the claim being made on behalf of respondent No.1. These circumstances have been taken into account by the courts below to hold that petitioner issued the cheque for discharge of a legally enforceable debt/liability. Petitioner has failed to rebut the presumption under Section 139 of the Act. Hence conviction of the petitioner requires no interference. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for one year and directed him to pay Rupees Two lakhs as compensation to respondent No.1 and in default of payment, to undergo simple imprisonment for six months. Appellate court modified the substantive sentence as simple imprisonment till rising of the court. Compensation order was converted as fine. A default sentence of two months’ imprisonment was also provided. I do not find reason to interfere with the sentence as modified by the appellate court. 6. Learned counsel for petitioner requested that petitioner may be granted three months’ time to deposit fine in the trial court. He stated about the difficulties being experienced by the petitioner in arranging the amount within a short time. Having regard to the amount involved and the circumstances stated by learned counsel, I am inclined to allow the request for time. Resultantly this revision fails. It is dismissed. Petitioner is granted three months’ time from today to deposit fine in the trial court as ordered by the Crl.R.P.No.1972/2009 4 appellate court and in default of payment, he shall undergo default sentence as ordered by the appellate court. Petitioner shall appear in the trial court on 1.10.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks