IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3895 of 2009()
1. SYAMKUMAR, AGED 38 YEARS,
... Petitioner
Vs
1. P.R.SASI, S/O. RAMAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY PUBLIC
For Petitioner :SRI.J.JULIAN XAVIER
For Respondent : No Appearance
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :23/12/2009
O R D E R
P.S.Gopinathan, J.
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Crl.R.P.3895 of 2009
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Dated this the 23rd day of December, 2009.
ORDER
1.The revision petitioner was convicted by the
Judicial Magistrate of the First Class-I, Aluva
in S.T.No.1807 of 2004 on his file for offence
under Section 138 of the Negotiable Instruments
Act and sentenced to undergo simple imprisonment
for six months and to pay Rs.2,90,000/- as
compensation with default clause to undergo
simple imprisonment for sixty days. In
Crl.A.1060/08, the Additional Sessions Judge (Ad-
hoc)-III, North Parur, by judgment dated
14.10.2009, confirmed the conviction and
sentence. Now this revision.
2.Having heard the learned counsel for the revision
petitioner, who had taken me through the evidence
of P.W.1 and perusing the judgment of the courts
below, I find that the wife of the deceased
CRRP3895/09 -:2:-
complainant, who was examined as P.W.1, had
succeeded to establish that the revision
petitioner borrowed a sum of Rs.2,90,000/- from
the deceased complainant and in discharge of the
liability, Ext.P1 cheque dated 13.3.2004 for the
said amount drawn on Corporation Bank, Angamaly
branch was issued and that when presented for
collection through the Union Bank of India,
Athani branch, it was dishonoured for
insufficiency of funds, as evidenced by Exts.P2
and P3 memos. Though a lawyer notice, copy of
which was marked as Ext.P4 was caused demanding
discharge of the liability, it was returned
unclaimed. The liability was not discharged.
3.The revision petitioner took up a defence that
the cheque in dispute was handed over to one Bose
and that the transaction was settled. But the
cheque was not returned by Bose. In support of
the defence version, the revision petitioner had
CRRP3895/09 -:3:-
given evidence. The learned counsel for the
revision petitioner had advanced an argument that
deceased complainant had no capacity to pay that
much amount and in that circumstance, the
existence of a legally recoverable debt is not a
matter of presumption under Section 139 of the
Negotiable Instruments Act. In support of the
argument, the learned counsel had relied upon the
dictum laid down by the Apex Court in Krishna
Janardhan Bhat v. Dattatraya G.Hegde [(2008 (1)
K.LT. 425 (SC)]. Going by the evidence of P.W.1,
I find that P.W.1 had satisfactorily explained
the source of income, which was not in fact
challenged. Neither there is any suggestion to
P.W.1 that the complainant, who was the husband
of P.W.1, has no source to pay the amount. The
evidence of P.W.1 remains unimpeached. In the
light of the unimpeached evidence of P.W.1, the
defence version even does not advance
preponderance of probability. The ratio of the
CRRP3895/09 -:4:-
above decision is not applicable to the case on
hand. Though the revision petitioner had got a
case that the cheque was issued to one Bose as
regards another transaction and that was settled,
there is no supporting evidence other than oath
against oath. The veracity of the testimony of
P.W.1 could not be shaken in cross-examination.
The testimony of the revision petitioner as D.W.1
could not rebut the presumptions in favour of the
complainant. It is in the above circumstance,
the courts below had believed the testimony of
P.W.1 to arrive at a finding in favour of the
complainant that Ext.P1 was issued in discharge
of existing liability. The fact that Ext.P1 was
dishonoured is in fact not disputed. There is no
case for the revision petitioner that he had
sufficient funds in his account to honour the
cheque.
4.The learned counsel had also advanced a
CRRP3895/09 -:5:-
contention that since the notice was returned,
there is no statutory notice and the prosecution
is vitiated for want of notice. The courts below
had considered the contention advanced by the
revision petitioner and found that Ext.P5
returned notice was duly addressed and duly
stamped. The postman had taken the notice to the
revision petitioner on one occasion and since he
was absent it was taken back and on another
occasion it was endorsed that the notice returned
as unclaimed. There is no material on record to
show that the first respondent or her husband had
anyway interfered with the due discharge of
duties by the postman. There is little material
to show that the postman had made endorsement
with any ulterior motive. In the above
circumstances, it is to be presumed that the
postman had discharged his duties in good faith
and the endorsement made on Ext.P5 is also in
good faith. There is no reason to reject the
CRRP3895/09 -:6:-
endorsement on Ext.P5. Hence, the courts below
were justified in arriving at a conclusion that
there was constructive notice. There is
substantive compliance of the statutory
requirements. The conviction is based upon
cogent evidence and is not liable to be
interfered with in exercise of the revisional
powers.
5.Taking note that the the business of the revision
petitioner ended in failure and that the
financial difficulties led him to face the
prosecution, I find that he is entitled to a
little leniency in sentence and that a sentence
of imprisonment till rising of the court with a
fine of Rs.2,90,000/- would meet the ends of
justice.
In the result, this revision petition is allowed
in part. While confirming the conviction, the
CRRP3895/09 -:7:-
substantive sentence is reduced to imprisonment
till rising of the court and a fine of
Rs.2,90,000/-. In default of payment of fine,
the revision petitioner shall undergo simple
imprisonment for six months. The revision
petitioner is granted six months’ time to pay the
fine. Till then, the bail bond executed by him
shall remain in force.
P.S.Gopinathan, Judge.
sl.