High Court Kerala High Court

Sainudeen vs P.S.Suseela on 6 July, 2009

Kerala High Court
Sainudeen vs P.S.Suseela on 6 July, 2009
       

  

  

 
 
  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.
                           --------------------------------------
                             Crl.R.P.No.2162 of 2009
                           --------------------------------------
                      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

2

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

Crl.R.P.No.2162/2009

3

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