C.P. Sudhakaran v. Molly Mathew and The State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930** **Crl.Rev.Pet.No. 1085 of 2001()** **----------------------------------------** **CC.722/1992 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM CRA.41/1997 of ADDL.SESSIONS COURT, KOTTAYAM** **....................** ## **REVISION PETITIONER(S):** **--------------------------------------** **C.P.SUDHAKARAN, CEMERAKAPARAMPIL, KOCHANGADY, COCHIN - 5.** **BY ADV. SRI.V.G.ARUN** **RESPONDENTS:** **-----------------------** **1. MOLLY MATHEW, ZEEYEN HILL, PUTHENPARAMBIL, POOVANTHURUTHU, KOTTAYAM.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **BY PUBLIC PROSECUTOR SRI. AMJAD ALI ADV. SRI.KOSHY GEORGE FOR R1** - **SRI.GEORGE ZACHARIAH ERUTHICKEL FOR R1** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **THOMAS P JOSEPH, J ================== Crl.R.P.No.1085 of 2001** ## **================== Dated this the 5[th] day of December, 2008.** ## **O R D E R** **C** oncurrent findings entered by the courts below that revision petitioner committed the offence punishable under Section 138 of the Negotiable Instruments Act and sentence to undergo simple imprisonment for six months and to pay a of fine of Rs.35,000/- is under challenge in this revision. The learned counsel for revision petitioner contended that the learned Chief Judicial Magistrate had no territorial jurisdiction to try the case, that the 1[st] respondent failed to prove that the cheque in question was issued for the discharge of legally enforceable debt or other liability and that at any rate there is no proper service of notice on the revision petitioner. According to the counsel for the 1[st] respondent, conviction is unassailable. 2. Case pleaded by the 1[st] respondent is that she had subscribed to a kuri run by the revision petitioner and his sister, Smt. Sureswari Sasidharan, the latter being the foremen of the company. Kuri was started on 10.8.1988 and it terminated on 20.10.1991. Rs.21,750/- was due to her after all deductions and **Crl.R.P.No.1085 of 2001** -2- on her demanding payment of the amount, revision petitioner issued the cheque in her favour at Kottayam. As requested by revision petitioner, she presented the cheque after 10.6.1992 but it was returned for insufficiency of fund. She issued notice to the revision petitioner and his sister on 27.6.1992. Notice was served on them. His sister gave Ext.P6, reply. Since revision petitioner did not comply with the demand, she preferred the complaint. 1[st] respondent gave evidence as PW1 and proved Exts.P1 to P8. Ext.P1 is the cheque in question drawn on Service Co-Operative Bank, Thoppumpady. Dishonour of the cheque for insufficiency of funds is proved by Ext.P2 and the evidence of PW2, Manager of the Co-Operative Bank. Case of the revision petitioner is that he had no transaction with the 1[st] respondent and that the cheque was handed over to the 1[st] respondent by his sister. 3. So far as the contention raised by the learned counsel for revision petitioner that learned Chief Judicial Magistrate, Kottayam had no territorial jurisdiction to try the case is concerned, 1[st] respondent pleaded and stated in her evidence that revision petitioner executed the cheque in her favour at **Crl.R.P.No.1085 of 2001** -3- Kottayam. If that version of the 1[st] respondent is accepted certainly the Chief Judicial Magistrate, Kottayam had territorial jurisdiction. As against that version of 1[st] respondent, no contra evidence is adduced. On going through the evidence of the 1[st] respondent, I do not find to disbelieve her reason. It is proved that execution of cheque was within the territorial limits of the jurisdiction of the trial court. Moreover under Section 462 of the Code of Criminal Procedure, no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub division or other local area, unless it appears that such error has in fact occasioned a failure of justice. It is not shown even if it is assumed that execution of cheque was beyond the territorial limits of the jurisdiction of Chief Judicial Magistrate, Kottayam that the trial of the case by the learned Chief Judicial Magistrate, Kottayam occasioned any failure of justice. 4. So far as the due execution of cheque is concerned, it is proved by the 1[st] respondent and Ext.P6 also corroborate that **Crl.R.P.No.1085 of 2001** -4- version that Rs.21,750/- was due to her in connection with the kuri run by M/s. Deepam Financial Enterprises of which Ext.P6 also shows that the sister of revision petitioner was the foreman. According to the 1[st] respondent, it was to discharge that liability that the revision petitioner issued Ext.P1. It is also the case of the 1[st] respondent that revision petitioner and his sister were running the kuri though the sister were the foreman. It is denied by the revision petitioner that he had any transaction with Deepam Financial Enterprises. Learned Sessions Judge while disposing the appeal observed that no documentary evidence is produced by the 1[st] respondent to prove that revision petitioner is connected with the kuri transaction. But there is the evidence of the 1[st] respondent in that line. Assuming that, evidence of the 1[st] respondent in that regard is not sufficient or not acceptable for any reason, evidence revealed that revision petitioner, in discharge of the liability of Deepam Financial Enterprises run by his sister, issued Ext.P1 in favour of 1[st] respondent. It is difficult to believe the version of the revision petitioner that the cheque singed by him was stealthily collected by his sister and handed over to the 1[st] respondent. Evidence on record justified the **Crl.R.P.No.1085 of 2001** -5- concurrent finding entered by the court below. Revision petitioner issued Ext.P1 for the discharge of debt in favour of the 1[st] respondent. As to the legality of recoverability of that debt, there is the evidence which I have already stated about that Rs.21,750/- was due to the 1[st] respondent and that the amount was payable to her on or after 28.10.1991 on which day, the kuri terminated. 5. Last contention is concerning the service of notice. 1[st] respondent claimed that notice was issued to the revision petitioner on 27.6.1992. Ext.P4 is the office copy of the notice dated 27.6.1992. That notice is directed against the revision petitioner and his sister. Ext.P3 series are the postal receipts produced by the 1[st] respondent to show that notice was sent by registered post. According to the 1[st] respondent, notice was sent to the revision petitioner and his sister under certificate of posting also. Though certificate of posting is produced in the case, it is not seen marked. Ext.P6 is the reply sent by the sister of revision petitioner. Argument advanced by learned counsel is that there is no evidence to show either that the notice sent to the revision petitioner was served on him or that he refused it. **Crl.R.P.No.1085 of 2001** -6- ## Learned counsel placed reliance on the decision in **Suresh Kumar v. Sasi [2003(2) KLT 367].** 6. Obligation of the payee or the holder in due course is only to send the notice in the correct address of the drawer. It is also not necessary to aver in the complaint that the notice was purposely avoided by the drawer. In this case the notice was issued to the revision petitioner by registered post in his correct address. Normally when the notice is sent by registered post in the correct address, that should reach the addressee. That presumption is strengthened by the fact that the notice sent to the sister of the revision petitioner on the same date was served on her and she sent Ext.P6 reply. When the registered notice sent by post is not returned to the sender, it can be presumed that it was served on the addressee. In these circumstances, the contention that there was no proper service of notice on the revision petitioner cannot be accepted. I have gone through the evidence and the judgments of the courts below and find no illegality, irregularity or impropriety in the findings or the proceedings of the courts below requiring interference by this court. Conviction therefore cannot be assailed. **Crl.R.P.No.1085 of 2001** -7- 7. So far as the sentence is concerned, learned Sessions Judge did not interfere with the sentence awarded by the learned Chief Judicial Magistrate. I found from the evidence that Rs.21,750/- was due to 1[st] respondent as on 28.10.1991. Considering the nature of the offence committed, I am satisfied that simple imprisonment till rising of the court is sufficient punishment. At the same time, revision petitioner has to compensate the 1[st] respondent which, in the facts and circumstances of the case is fixed as Rs.35,000/-. In the result, this revision petition is allowed in apart in the following lines: (i) substantive sentence awarded to the revision petitioner is modified as simple imprisonment till rising of the court. (ii) Revision petitioner is directed to deposit in the trial court for payment to the 1[st] respondent. Rs.35,000/- (Rupees thirty five thousand only) as compensation within three months from this day failing which, he shall undergo simple imprisonment for three months. **Crl.R.P.No.1085 of 2001** -8- (iii) Amount if any deposited by the revision petitioner in the trial court shall be adjusted in the compensation ordered as per Clause (ii). (iv) Revision petitioner shall surrender in the trial court on 12.3.2009 to receive the sentence. Bail bond is cancelled Criminal Miscellaneous Petition No.5124 of 2001 shall stand dismissed. ## **THOMAS P.JOSEPH, JUDGE** rhs