IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 381 of 2006()
1. JOHN JOSEPH, S/O.GEORGE,
... Petitioner
Vs
1. K.A.HAMEED, KOLLAPPARAMBIL HOUSE,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.J.DEVADANAM
For Respondent :SRI.K.V.SABU
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :17/10/2008
O R D E R
M.N. KRISHNAN, J.
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CRIMINAL.R.P. NO. 381 OF 2006
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Dated this the 17th day of October, 2008.
O R D E R
This revision is preferred against the judgment of the
4th Additional Sessions Judge, Ernakulam in Crl.A.1141/05.
The said appeal arose out of the conviction and sentence
passed in C.C.358/99 of the Addl. Chief Judl. Magistrate,
Ernakulam. The revision petitioner was convicted and
sentenced to undergo simple imprisonment for three months
and to pay a fine of Rs.3,10,000/- and in default to undergo
simple imprisonment for one month. The matter when taken
up in appeal, was dismissed by the appellate court. It is
against that decision the present revision is preferred.
2. Heard the learned counsel for the revision
petitioner as well as the respondent. It is the case of the
complainant that the accused had borrowed a sum of
Rs.3,00,000/- and towards discharge of the same, had
issued a cheque drawn on South Indian Bank Ltd. which
when presented for encashment returned with the
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endorsement of insufficiency of funds. Therefore statutory
notice was issued and on account of the non payment
prosecution has been launched u/s 138 of the N.I. Act.
3. The case of the revision petitioner is that he was
an employee under the complainant and there was some
misunderstanding between the two and on the day when he
went to the house of the complainant to deposit the chitty
amount collected, he was restrained, manhandled and was
forced to write a cheque and it is on the basis of that cheque
action has been initiated.
4. In the trial court PW1 and DWs.1 to 6 were
examined. Exts.P1 to P9 and D1 and D1(a) were marked.
Both the Courts concurrently found against the revision
petitioner on facts. The learned counsel for the revision
petitioner has mainly argued on two points, one namely, the
non receipt of notice and secondly lack of evidence regarding
the transaction alleged in the complaint.
5. Let me first consider about the notice. Ext.P6 is
the copy of the notice issued on 9.7.98 by Advocate K.V.
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Sabu and it is addressed to Mr.John Joseph, son of George,
Anjiparambil house, Vennala now residing at Cardinal
Quarters, Thrikkakara, B.M.C.P.O. Exts.P7 and P8 would
reveal that it was entrusted to universal couriers for service
and Ext.P7 indicates that the revision petitioner had received
notice. It is argued by the learned counsel that there is no
address shown in the courier document and there has not
been any tender of notice and therefore has disputed its
existence. It can be seen from the notice, in the complaint
as well as in the revision petition the very same address is
given and therefore there is always a presumption that it has
been duly tendered unless concrete rebuttable evidence is
adduced against that. It has also come out in evidence that
courier service was utilized for the reason that there was
some postal strike at that point of time. It is a well settled
proposition under the law if a letter is addressed with proper
address there is a presumption of service and the Apex Court
has even held that in such cases it is the duty of the
addressee who is leaving out of the place to furnish these
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details before the postal authorities for the purpose of
serving notice in new address. But as stated by me earlier
there is no such change of address in this case and address
is exactly the same in all the documents and therefore the
contention of the learned counsel for the revision petitioner
that notice has not been received cannot be accepted.
6. Now, let me consider about the factual matrix.
Sitting in revisional jurisdiction the power to re-appreciate
evidence is limited and unless there is manifest illegality or
mis appreciation it may not be proper for a revisional Court
to substitute its views on the concurrent finding on facts.
But for the sake of satisfaction I had gone through the
evidence of PW1 and the evidence of defence witnesses.
PW1 is the power of attorney holder of the complainant. It is
a settled proposition of law that the power of attorney holder
is not competent to give evidence with respect to the matter
unless he is personally aware of the transaction. Here a
reading of the evidence of PW1 would reveal that he had
personal knowledge about the transaction and his
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acquaintance with the complainant is even put in cross-
examination in the form of a question that he along with the
complainant had restrained the accused in this case. It is
true that he is not able to give minutest details asked for
with respect to the other transactions of the complainant.
That is not possible at any rate and therefore I find the
evidence of PW1 who has got personal knowledge has been
properly analysed by the Courts below.
7. Regarding the accused, namely the revision
petitioner, only his wife had been examined and what she
has deposed about the cheque according to herself is only
hearsay. She does not have any personal knowledge. The
other witnesses are examined just to establish that the
revision petitioner was working as an employee of the
complainant. The crux of the case is regarding the execution
of the cheque. Suppose a person is wrongfully restrained
and he is made to execute a cheque necessarily he would
have approached appropriate authorities for redressal of the
grievance. There is no other case for the revision petitioner
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in this case. Secondly the case of the revision petitioner is
that he had gone to the house of the complainant when he
was restrained and forced to write a cheque. One cannot
accept the story that this man will always carry a cheque-leaf
with him so as to sign it and give it to the complainant. So
the evidence tendered is not trustworthy. I am conscious of
the fact that u/s 315 Cr.P.C. the accused shall not be
compelled to give evidence and one is not expected to pick
holes on them. But at the same time it has been held in
catena of decisions that when evidence is adduced by both
sides it is the preponderance of probabilities that is to be
looked into to arrive at the credibility of the evidence.
8. So far as Ext.P1 cheque is concerned PW1 who
has been associated with the complainant and who was
present at the time of the transaction had given evidence
regarding its execution and therefore execution of Ext.P1
stands proved. When it is proved then there is a
presumption under the provisions of the N.I.Act which of
course is rebuttable. But the rebuttable evidence is not
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satisfactory so as to discharge the burden cast on the person
who denies the same. Therefore on an analysis of the entire
materials I have no hesitation to hold that there was a
proper service of notice and that the complainant had
satisfactorily established the case of execution of the cheque,
presentation of the cheque for encashment, return of cheque
for insufficiency of funds and compliance of other statutory
requirements under the N.I.Act. Therefore the conviction
passed by both the Courts below has to be confirmed.
9. Now on the question of sentence. Learned
counsel for the revision petitioner requests for leniency on
the sentence. If there is a mind to pay the amount he need
not be unnecessarily send to jail. Therefore I am inclined to
show leniency in modifying the sentence by reducing it to
one till the raising of the Court and alter the compensation
u/s 357(3) to one as fine with a direction to pay the amount
to the defacto complainant. In the result the revision is
disposed of as follows:
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(1) The conviction u/s 138 of the N.I. Act is
confirmed.
(2) The revision petitioner is sentenced to undergo
simple imprisonment till the raising of the Court and to pay a
fine of Rs.3,00,000/- which on realisation shall be paid to the
defacto complainant. In the event of any default the revision
petitioner shall undergo simple imprisonment for a period of
one month. He is directed to appear before the trial court for
receiving the sentence on 14.1.09 and also to pay the fine.
In default of it, the trial court is directed to execute the
sentence.
M.N. KRISHNAN, JUDGE.
ul/-