IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1972 of 2009()
1. BINOY VARGHESE, S/O.K.T.VARGHES AGED
... Petitioner
Vs
1. T.C.THOMAS, THEKKEL HOUSE,
... Respondent
2. STATE OF KERALA R/BY PUBLIC PROSECUTOR
For Petitioner :SRI.TOM JOSE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :29/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.1972 of 2009
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Dated this the 29th day of June, 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. This revision is in challenge of judgment of learned Additional
District and Sessions Judge, Fast Track Court (Adhoc)-II(in charge), Kottayam in
Crl.Appeal No.31 of 2005 confirming conviction but modifying the sentence of
petitioner for offence punishable under Section 138 of the Negotiable
Instruments Act (for short, “the Act). Case arose on a private complaint
preferred by respondent No.1. He alleged that petitioner owed Rupees two
lakhs to him and for discharge of that liability issued Ext.P1, cheque dated
10.6.2003.. That cheque was dishonoured for insufficiency of funds as proved
by Ext.P2, memo dated 21.6.2003. On getting information about dishonour
as per Ext.P3 dated 26.6.2003 respondent No.1 issued notice to the petitioner
intimating dishonour and demanding payment of the amount. Exts.P4 and P5
are produced to show issue of notice to the petitioner by registered post. Ext.P6
is the returned cover. Intimation was given to the petitioner about registered
notice but it was not claimed and hence returned. Respondent No.1 gave
evidence as PW1 and testified to his case. He claimed that petitioner borrowed
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Rupees two lakhs from him and issued the cheque for repayment of that amount.
Petitioner contended that he had taken Rupees one lakh from one Kuriakose
and issued a signed blank cheque. He repaid Rs.40,000/- and the balance
amount payable to the said Kuriakose is Rs.60,000/-. That cheque was misused
by respondent No.1.
3. Issue of statutory notice is proved by Exts.P4 and P5. It is not
disputed that notice was issued to the petitioner in his correct address. The
presumption is that when notice is issued by registered post in the correct
address it reached the address. Ext.P6 shows that notice was returned
unclaimed though, intimation was given to the petitioner. Endorsement on
Ext.P6 is not shown to be incorrect and hence there is deemed service of
notice on petitioner.
4. What remained for consideration is whether due execution of the
cheque is proved. I refer to the evidence of respondent No.1 as PW1. PW1 is
engaged in financing business. He denied that he was only a collection agent of
Kuriakose and that cheque in question was given to him by the said Kuriakose.
As to that contention of petitioner what is available is only the suggestion put to
respondent No.1 which he denied. There is no evidence or circumstance to
hold that respondent No.1 got custody of the cheque in the circumstances
pleaded by the petitioner. Though, petitioner cited Kuriakose as a witness to be
examined on his side, summons and warrants issued were not fruitful. Hence
examination of the said Kuriakose was dispensed with. There is no reason to
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disbelieve the evidence of respondent No.1. That, petitioner did not accept the
notice issued on behalf of respondent No.1 shows that he was aware of the
claim being made on behalf of respondent No.1. These circumstances have
been taken into account by the courts below to hold that petitioner issued the
cheque for discharge of a legally enforceable debt/liability. Petitioner has failed
to rebut the presumption under Section 139 of the Act. Hence conviction of the
petitioner requires no interference.
5. Learned magistrate sentenced the petitioner to undergo simple
imprisonment for one year and directed him to pay Rupees Two lakhs as
compensation to respondent No.1 and in default of payment, to undergo simple
imprisonment for six months. Appellate court modified the substantive sentence
as simple imprisonment till rising of the court. Compensation order was
converted as fine. A default sentence of two months’ imprisonment was also
provided. I do not find reason to interfere with the sentence as modified by the
appellate court.
6. Learned counsel for petitioner requested that petitioner may be
granted three months’ time to deposit fine in the trial court. He stated about the
difficulties being experienced by the petitioner in arranging the amount within a
short time. Having regard to the amount involved and the circumstances stated
by learned counsel, I am inclined to allow the request for time.
Resultantly this revision fails. It is dismissed. Petitioner is granted three
months’ time from today to deposit fine in the trial court as ordered by the
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appellate court and in default of payment, he shall undergo default sentence as
ordered by the appellate court. Petitioner shall appear in the trial court on
1.10.2009 to receive the sentence.
THOMAS P.JOSEPH,
Judge.
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