IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2162 of 2009()
1. SAINUDEEN,
... Petitioner
Vs
1. P.S.SUSEELA,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.P.KURUVILLA JACOB
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :06/07/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.2162 of 2009
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Dated this the 6th day of July, 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 her. Public
Prosecutor takes notice for respondent No.2.
2. This revision is in challenge of judgment of learned Additional
Sessions Judge, Kottayam in Crl.Appeal No.840 of 2007 confirming conviction
but modifying sentence imposed on petitioner for offence punishable under
Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent
No.1 filed a private complaint alleging that petitioner borrowed Rs.2.50,000/-
from her and for repayment of that amount issued Ext.P1, cheque dated
2.5.2005 That cheque on presentation was dishonoured for insufficiency of
funds as proved by Exts.P2 and P3. Respondent No.1 issued statutory notice
to the petitioner on 20.5.2005 intimating dishonour and demanding payment of
the amount. Issue of notice to the petitioner by registered post is proved by
Exts.4 to P5. Respondent No.1 gave evidence as PW1. She stated that
petitioner is working with her sister’s husband in a police station and that it was
for completing his house construction that he borrowed the amount from her.
According to the petitioner, he had no transaction with respondent No.1 and he
lost a signed blank from his possession. He intimated his bank about the
Crl.R.P.No.2162/2009
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missing of the cheque on time. He also claimed that there was no service of
notice on him.
3. So far as service of notice is concerned, Ext.P6 is the
acknowledgment card dated 25.5.2005. There is no dispute that notice was
issued to the petitioner in his correct address. When notice is sent by registered
post in correct address it must be presumed to have reached the addressee.
Ext.P6 shows that petitioner accepted the notice. Hence his contention that he
was not served with notice cannot be accepted.
4. On the question of execution of the cheque there is evidence of
respondent No.1. Petitioner merely contended that he lost the signed blank
cheque from his possession. It is not disputed that petitioner is a police
constable. If the cheque was lost, petitioner would have certainly taken action.
Though he claimed that he informed the bank about missing of the cheque,
there is no evidence. Petitioner was not successful in proving that he lost the
cheque and respondent No.1 stealthily took possession of it. Nothing is
brought out to disbelieve evidence of respondent No.1. There is no reason to
interfere with the finding of the courts below regarding execution of the cheuqe
for discharge of a legally enforceable debt/liability and service of notice on
petitioner.
5. Learned magistrate sentenced the petitioner to undergo simple
imprisonment for three months and directed him to pay Rs.2,50,000/- as
compensation to respondent No.1. There was also a default sentence of simple
imprisonment for one month. Appellate court modified the substantive
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sentence as simple imprisonment till rising of the court. Instead of compensation
petitioner was directed to pay fine of Rs.2,50,000/- and in default of payment, to
undergo simple imprisonment for two months. It was directed that fine if
realized will be paid to respondent No.1 as compensation. Having regard to the
nature of offence and the amount involved there is no reason to interfere with the
sentence as modified by the appellate court.
6. Learned counsel submits that petitioner is in financially difficult
situation unable to raise money immediately and requested four months’ to
deposit fine. Having regard to the circumstances stated by learned counsel and
the amount involved I am inclined to allow the request for time.
Resultantly, this revision petition fails. It is dismissed. Petitioner is
granted four months’ time from today to deposit fine in the trial court as ordered
by the appellate court and in default of payment, he shall undergo default
sentence ordered by the appellate court. Petitioner shall appear in the trial court
on 9.11.2009 to receive the sentence. Execution of warrant if any against the
petitioner will stand in abeyance till 9.11.2009.
THOMAS P.JOSEPH,
Judge.
cks