IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2581 of 2009()
1. M.S.KALESH, AGED 37 YEARS
... Petitioner
Vs
1. CIJUMON, AGED 37 YEARS, S/O. ANTONY,
... Respondent
2. STATE OF KERALA, REP. BY PUBLIC
For Petitioner :SRI.A.T.ANILKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :10/08/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.2581 of 2009
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Dated this the 10th day of August, 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. Petitioner faced trial in the court of learned Additional Chief Judicial
Magistrate (Economic Offences), Ernakulam in C.C.No.41 of 2006 for offence
punishable under Section 138 of the Negotiable Instruments Act (for short, “the
Act”). Case is that petitioner issued Ext.P1, cheque dated 15.5.2004 for
discharge of a liability to the tune of Rs.1,50,000/- but that cheque was
dishonoured for insufficiency of funds as proved by Ext. P2. Notice was issued
to the petitioner intimating dishonour and demanding payment of the amount.
According to respondent No.1 notice was returned unclaimed inspite of
intimation given to the petitioner. Issue and return of notice are proved by
Exts.P3 to P5. Respondent No.1 gave evidence as PW1 and testified to the
transaction leading to execution of the cheque. According to the petitioner,
he had shared the office room at M.G.Road, Ernakulam with respondent No.1
and on that occasion the latter stealthily collected the cheque leaf and misused
it. Petitioner gave evidence as DW1. Courts below found in favour of due
execution of the cheque. It is contended that the finding is not correct. The
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further contention is that there is no proper service of notice on petitioner.
3. So far as execution of the cheque is concerned, learned Additional
Chief Judicial Magistrate observed that though when questioned under Section
313 of the Code of Criminal Procedure petitioner claimed that he shared office
room with respondent No.1 and on that occasion respondent No.1 stealthily
collected the cheque, petitioner when examined as DW1 did not have such a
case. At any rate there is no evidence to show that respondent No.1 stealthily
obtained the cheque as contended by the petitioner. It is admitted and proved
that the cheque is signed by petitioner and it is drawn on the account
maintained by him. If the cheque was stealthily collected by respondent No.1,
petitioner would have intimated his banker about that and requested stoppage of
payment. Courts below observed that there is no reason to disbelieve
respondent No.1 regarding transaction leading to the execution. I find no
reason to differ from that finding.
4. So far as service of notice is concerned, it is contended by learned
counsel that the address given in Ext.P3 is not correct. Learned counsel referred
me to the evidence of respondent No.1. But it is seen from Ext.P5, returned
notice that intimation was given to the petitioner., The postman has endorsed
that intimation was given to the petitioner. It is not shown that endorsement is
not correct. Legality and regularity of the official act is to be presumed. That
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presumption is not rebutted. Moreover petitioner has no case that he was willing
to pay the amount within fifteen days of the service of summons with copy of
complaint. Therefore the contention that there is no service is unsustainable. I
do not find reason to interfere with the conviction of the petitioner.
5. Appellate court while modifying the substantive sentence as simple
imprisonment till rising of the court confirmed the direction for payment of
compensation of Rs.1,50,000/- to respondent No.1 and the default sentence of
imprisonment imposed by the learned Additional Chief Judicial Magistrate.
Having regard to the nature of offence and the amount involved I find no reason
to interfere with the substantive sentence as modified or direction for payment
of compensation and default sentence as confirmed by the appellate court, at
the instance of petitioner.
6. It is requested by learned counsel that considering the amount
involved and the fact that petitioner is not able to raise the entire amount
immediately, he may be granted six months’ time to deposit compensation.
Having regard to the circumstances stated by learned counsel and the amount
involved I am inclined to grant time till 29.1.2010 to deposit compensation.
Resultantly, this revision petition fails. It is dismissed. Petitioner is
granted time till 29.1.2010 to deposit compensation in the trial court. It is made
clear that it will be sufficient compliance of the direction for deposit of
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compensation if petitioner paid compensation to respondent No.1 through his
counsel in the trial court and respondent No.1 filed a statement in the trial court
through his counsel acknowledging receipt of compensation within the above
said period. Petitioner shall appear in the trial court on 30.1.2010 to receive the
sentence. Until then execution of warrant if any against the petitioner will stand
in abeyance.
THOMAS P.JOSEPH,
Judge.
cks