IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 Crl.Rev.Pet.No. 23 of 2008() ---------------------------- CRA.387/2005 of ADDITIONAL SESSIONS JUDGE(ADHOC-I) MANJERI ST.36/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), MANJERI .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- K.KRISHNAN,AGED 41 YEARS,S/O.ACHUTHAN KADMAN,VALLYAPOYIL, OLLATT, KODAKKAD PO, THRIKARIPPUR, KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENTS: RESPONDENT/COMPLAINANT ----------------------------------- 1. UNNIMAMMED,S/O.M.P.ALIKUTTY, PATHANAPURAM,KEEZHIPARAMB P.O.,AREACODE. 2. STATE REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P.No.23 of 2008 ------------------------------------- Dated this the 9th day of January, 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I Act. The petitioner now faces a sentence of imprisonment till rising of court. There is a further direction to pay an amount of Rs.1,00,000/- as compensation and in default to undergo S.I for a period of three months. 2. The cheque is for an amount of Rs.94,000/-. It bears the date 25.02.03. Signature in the cheque is admitted. Handing over of the cheque is also not disputed. But it is contended that the cheque was handed over not to the complainant, but to the brother of the complainant. The cheque was dishonoured for insufficiency of funds. The statutory time table was scrupulously followed by the complainant. He filed the complaint. The complainant was examined as PW1. Exts.P1 to P4 were marked. Dws 1 to 3 were examined on the side of the accused in support of his plea that the cheque was handed over not to the complainant, but to his brother. Exts.D1 to D6 were also marked. Crl.R.P.No.23 of 2008 2 3. The notice of demand was issued by the complainant to the petitioner/accused. It was returned with the endorsement that it was refused by the petitioner/accused. Exts.D1 to D6 were proved primarily to show that the address shown in the notice of demand is not correct. 4. Called upon to explain the nature of challenge, which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner raises various contentions. 5. First of all it is contended that it has not been proved that the cheque was issued for the due discharge of any legally enforcible debt/liability. Courts below have considered the evidence available on this aspect. PW1, the complainant has explained how the cheque with the signature of the petitioner thereon travelled from the possession of the petitioner to the possession of the complainant. The oral evidence of PW1 is eminently supported by his ability to produce the cheque which admittedly is drawn on an account maintained by the petitioner on a cheque leaf issued to the petitioner by his bank and which cheque leaf admittedly contains the signature of the petitioner. Dws 1 to 3 were examined to disprove the evidence of PW1. Less said about their evidence, the better. Courts below have Crl.R.P.No.23 of 2008 3 considered their evidence in detail and have come to the conclusion that such evidence of Dws 1 to 3 is not sufficient to offset the effect of evidence of PW1 or even to generate a reasonable doubt in the mind of a court about the execution and handing over of the cheque in question. 6. It will not be in apposite in this context that the petitioner had a case that the cheque was not filled up by him and that bears only his signature. Opportunity was prayed for to prove this contention. The court indulgently permitted the petitioner to take steps to get the cheque examined by the expert. But the said opportunity was not availed of by the petitioner. I am, in these circumstances, satisfied that there is no merit in the first contention raised by the petitioner that the cheque was not issued for the due discharge of any legally enforcible debt/liability. 7. It is next contended that there was no proper notice of demand. This contention is built on the alleged inadequacy in the address given in the notice of demand. It is crucial to note that the notice was put into post and it was returned in the ordinary course of official transaction with the endorsement that the addressee had refused the notice. The petitioner is admittedly Crl.R.P.No.23 of 2008 4 Krishnan.K, S/o.Achuthan residing at Kodakkad, Thrikkarippur, Kasaragode District. According to the petitioner, his house name is Kadiyan, but in the notice of demand, the house name is described as Kadmon. Mountain is attempted to be made out this mole hill to contend that the notice issued was not proper. The trial court as well as the appellate court have considered this contention in detail. The presumption under Section 114 of the Evidence Act about the validity of official transactions as also the evidence available in this case must certainly lead any prudent mind to the conclusion that the alleged inadequacy in the address in the notice does not at all detract against the validity of the notice issued in the instant case. 8. It will not be in apposite in this context to note the principle accepted in Alavi Haji v. Muhammed [2007 (3) K.L.T 77]. The grievance raised by the petitioner, who even after receipt of notice in this case and appearance in this case has not chosen to pay and discharge the liability. There is no grace or merit in such a petitioner claiming inadequacy of notice as a ground to challenge the concurrent verdict of guilty, conviction and sentence. 9. No other contentions are raised. I am, in these circumstances, satisfied that the verdict of guilty, and conviction Crl.R.P.No.23 of 2008 5 are absolutely justified. The sentence imposed is moderate, lenient and indulgent. There is no elbow room to show any further leniency in the matter. 10. The learned counsel for the petitioner finally requests that a short breathing time may be given to the petitioner to raise and pay the compensation amount and avoid the default sentence. I do not find grace or merit in that prayer. The cheque is dated 25.02.03. The complainant has been compelled to fight 2 rounds of legal battles. About 5 years have already elapsed. Still payment has not been made. The petitioner's prayer for any long further time is found to be without any merit. However, I am satisfied, that the petitioner can be granted time till 29.02.2008 to make the payment and avoid the default sentence. 11. This Revision petition is accordingly dismissed, but with the observation/direction that the impugned sentence shall not be executed till 29.02.08. On or before 01.03.08, the petitioner shall appear and his sureties shall produce him before the learned Magistrate for execution of the sentence imposed. (R.BASANT, JUDGE) rtr/- Crl.R.P.No.23 of 2008 6