IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1646 of 2009()
1. SUNILKUMAR.K,S/O.K.NANU,CHITHRALAYAM,
... Petitioner
Vs
1. AJAYAKUMAR,S/O.K.P.VIJAYAN,PROP;BHARATH
... Respondent
2. THE STATE OF KERALA,REPRESENTED BY THE
For Petitioner :SRI.P.U.SHAILAJAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :27/05/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.1646 of 2009
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Dated this the 27th day of May, 2009.
ORDER
Notice to respondent No.1 is dispensed with in view of the order I
am proposing to make and which is not prejudicial to him. Public Prosecutor
takes notice for respondent No.2.
2. Case of respondent No.1 as concurrently found by the courts below
is that petitioner purchased electronic items from him for a total sum of
Rs.80,000/- and in partial discharge of the liability issued Ext.P1, cheque dated
21.8.1999 for Rs.25,274/- which was presented for encashment but was
returned for insufficiency of funds. Following that, notice was given to the
petitioner on 15.9.1999 intimating dishonour and demanding payment of the
amount. Notice was returned unclaimed though intimation was served on the
petitioner. Hence the complaint alleging offence punishable under Section 138
of the Negotiable Instruments Act (for short, “the Act). Respondent No.1 gave
evidence as PW1 and testified to his case. Dishonour of the cheque for the
reason stated above is proved by Exts.P2 and P6. Issue and service of notice
are proved by Exts.P3 and P4. Ext.P5 is the returned notice. It is not disputed
that notice was sent by registered post in correct address of the petitioner.
When notice is sent by registered post in the correct address, it should normally
reach the addressee. Endorsement in Ext.P5 is that inspite of giving intimation,
Crl.R.P.No.1646/2009
2
petitioner did not claim it. Hence as found by the courts below there is deemed
service of notice.
3. Contention raised by the petitioner is that he had given Ext.P1 to
respondent No.1 as security for cost of the articles offered to be given to him on
credit but he did not adduce any evidence in that line. That, petitioner had
business transaction with respondent No.1 is evident from the plea the petitioner
has raised. Petitioner did not prove or probabilise that the cheque reached
respondent No.1 in the circumstances pleaded by him. That, petitioner refused
to claim the notice inspite of getting intimation shows that he was aware of the
claim being made against him by respondent No.1. In the facts and
circumstances, courts below accepted the evidence of respondent No.1 and
found that petitioner issued the cheque in partial discharge of the liability.
Petitioner was also not successful in rebutting presumption under Section 139 of
the Act.
4. It is pointed out by the counsel that counsel for petitioner had not
argued the appeal before the appellate court. But it is seen that appellate court
heard the arguments of counsel for respondent No.1, perused the records and
disposed of the appeal. Conviction required no interference.
5. So far as sentence is concerned, Learned magistrate sentenced
the petitioner to undergo simple imprisonment for six months, to pay fine of
Rs.30,000/- and in default of payment to undergo simple imprisonment for three
Crl.R.P.No.1646/2009
3
months. Appellate court did not interfere with the sentence, one reason being
that there was no representation for the petitioner in that court and that the
appeal was not argued on behalf of the petitioner. In the facts and
circumstances of the case I am satisfied that simple imprisonment till rising of the
court and fine as awarded by the trial court is sufficient in the ends of justice.
Resultantly, this revision petition is allowed in part to the extent that the
substantive sentence awarded to the petitioner is modified as simple
imprisonment till rising of the court. Petitioner is granted one month’s time to
deposit fine in the trial court. Petitioner shall appear in the trial court on
30.6.2009 to receive the sentence.
Crl.M.A.No.5029 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks