IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2026 of 2009()
1. JACOB T.V.KUNNEL HOUSE, THIRUVANCHOOR
... Petitioner
Vs
1. THE STAE OF KERALA, REPRESENTED BY THE
... Respondent
2. MR.MANOJ CHACKO, PROPRIETOR,
For Petitioner :SRI.RAJEEV V.KURUP
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :24/06/2009
O R D E R
THOMAS P. JOSEPH, J.
--------------------------------------
Crl.R.P.No.2026 of 2009
--------------------------------------
Dated this the 24th day of June, 2009.
ORDER
Public Prosecutor takes notice for respondent No.1. Notice to respondent
No.2 is dispensed with in view of the order I am proposing to make in this
revision which is not prejudicial to him.
2. Petitioner faced trial in the court learned Judicial Magistrate of First
Class-I, Kottayam in S.T.No.1880 of 2006 on a complaint preferred by
respondent No.2. According to respondent No.2 petitioner owed Rs.25,000/- to
him and for repayment of that amount issued Ext.P1, cheque dated 27.3.2006.
That cheque was returned for insufficiency of funds as proved by Exts.P2 and
P3. Respondent No.2 issued notice to the petitioner on 29.3.2006 intimating
dishonour and demanding payment of the amount. Notice was returned
unclaimed. Dishonour of the cheque for reason of insufficiency of funds is
proved by Exts.P2 and P3. Exts.P4 and P5 show that notice was issued to the
petitioner in correct address by registered post. Ext.P6 shows that intimation
was given to the petitioner but notice was not claimed and was returned. Under
Section 27 of the General Clauses Act when a notice issued in correct address
by registered post, presumption is that it reached the addressee. In this case
there is no dispute regarding the correctness of address of petitioner given in
Exts.P4 and P5. There is also endorsement by the postman that intimation was
Crl.R.P.No.2026/2009
2
given to petitioner but it was not claimed. Hence there is deemed service of
notice on petitioner. Respondent No.2 gave evidence as PW1. He admitted that
he is a private financier but claimed that he has licence under the Money
Lenders Act. He claimed that petitioner borrowed Rs.25,000/- from him in the
year 2006 and for discharge of that liability issued Ext.P1, cheque. It was
suggested to respondent No.1 in cross examination that petitioner lost the
cheque from his custody, somebody took it up and gave the same to him. He
denied that suggestion. He also denied the suggestion that petitioner had not
signed the cheque. He claimed that petitioner signed the cheque in his
presence. Petitioner did not adduce any evidence regarding this contention.
3. So far as due execution of the cheque is concerned, there is
evidence of respondent No.2 as PW1. It is difficult to think that petitioner lost
the cheque from his possession and somebody took it up and handed over the
same to respondent No.2. If that was the situation, petitioner would have
informed his bank about his missing the cheque and requested to stop payment.
Moreover the failure of petitioner to claim notice inspite of intimation indicated
that he was aware of the claim made on behalf of respondent No.2. Apart
from putting some questions to respondent No.2, no effort was made by
petitioner to substantiate or probabilise his contention. Nothing was brought out
to disbelieve the evidence of PW1. In these circumstances I do not find
reason to interfere with the concurrent finding of the courts below as to the due
execution of cheque.
4. Learned magistrate sentenced the petitioner to undergo simple
Crl.R.P.No.2026/2009
3
imprisonment for three months. Appellate court modified the sentence as one
till rising of the court and fine of Rs.28,000/- with default sentence for two
months. It was directed that out of fine if realized Rs.25,000/- will be given to
respondent No.2 as compensation under Section 357(1) of the Code of Criminal
Procedure. Petitioner now seeks one month’s time to deposit fine in the trial
court.
5. Having regard to the nature of offence and the object of legislation
there is little reason to interfere with the sentence as modified by the appellate
court or the default sentence. Petitioner is however granted one month’s time to
deposit fine in the trial court.
Resultantly, this revision fails. It is dismissed. Petitioner is granted one
month’s time from today to deposit fine in the trial court as ordered by the
appellate court. Petitioner shall appear in the trial court on 27.7.2009 to receive
the sentence. Execution of warrant if any against the petitioner will stand in
abeyance till 27.7.2009.
Crl.M.A.No.6087 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks