K.S. Chandran v. State of Kerala and Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 10TH DAY OF APRIL 2013/20TH CHAITHRA 1935** ## **Crl.Rev.Pet.No. 2465 of 2003 ( )** **---------------------------------** **AGAINST THE ORDER/JUDGMENT IN CRA.NO.213/2002 OF ADDL.SESSIONS COURT,KOTTAYAM** **..... AGAINST THE ORDER/JUDGMENT IN CC.NO.663/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, VAIKOM ......** ## **REVISION PETITIONER(S):** **--------------------------------------------** **K.S.CHANDRAN, S/O.SANKU, AGED 42 YEARS, KADALIKKATTU, DHANYA HOUSE, NO.531, WARD NO.III OF THALAYOLAPARAMBU PANCHAYATH, VDAYAR VILLAGE, VAIKOM TALUK, KOTTAYAM.** **BY ADVS.SRI.K.MANOJ CHANDRAN SRI.C.N.SREEKUMAR** **RESPONDENTS:** - **------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. VARGHESE, S/O.AUGUSTHY, KALAYIL, THALAYOLAPARAMBU HOUSE, VADAYAR VILLAGE, VAIKOM.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **P.D. RAJAN, J.** ------------------------------------------Crl. R.P.No. 2465 of 2003 ---------------------------------------------Dated this the 10[th] day of April, 2013 ## **ORDER** This revision petitioner was convicted by the trial court U/s.138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one year under the above Section. An appeal preferred was partly allowed by the Sessions Court confirming the conviction passed by the trial court. Challenging the said judgments, the accused preferred this petition. 2. The complainant's case in the trial court was that on 2.8.98, the revision petitioner borrowed a sum of Rs.40,000/and in discharge of that liability he issued Ext.P1 cheque dated 22.8.1998. When it was presented for encashment through Thalayolaparambu Farmers' Co-operative bank, it was dishonoured for the reason of funds insufficient. After receipt of the information from the bank, the 2[nd] respondent issued a statutory notice. It was returned unclaimed. In the 2 Crl. R.P. No.2465/03 circumstances, the above case was filed in the trial court. 3. When the revision petitioner appeared in the trial court, particulars of offence read over to him to which he pleaded not guilty. Hence, the 2[nd] respondent was examined as PW1 and his documents were marked as Exts.P1 to P8. The incriminating circumstances brought out in evidence were denied by the revision petitioner while questioning under Section 313 Cr.P.C. He did not adduce any defence evidence. The trial court after sifting and weighing the evidence on record, convicted the revision petitioner under Section 138 of the Negotiable Instruments Act and sentenced thereunder. Against that, he preferred an appeal before the Sessions Court, where the conviction confirmed and the sentence modified. Aggrieved by that order, this revision is filed. 4. The learned counsel Sri. M.Sunil, appearing for the revision petitioner contended that there was no proper notice s per Section 138(b) of the Negotiable Instruments Act. Ext.P5 notice was addressed in a shop address and it was unclaimed by some unknown persons. No substantive piece of evidence has been produced before the court to prove that there was proper compliance of Section 138(b) of the Act by the 2[nd] respondent. When there is no proper notice as per Section 138 Crl. R.P. No.2465/03 3 (b), the conviction and sentence passed by the trial court is unsustainable. 5. There was no representation from the side of the 2[nd] respondent. 6. Now the only question that arises of consideration is whether there is any non-compliance of Section 138 (b) of the Negotiable Instruments Act? If so, the conviction and sentence passed by the trial court is sustainable in law. 7. To prove the case, the 2[nd] respondent was examined in the trial court as PW1. The oral testimony of PW1 shows that on 2.8.1998 the revision petitioner borrowed a sum of Rs.40,000/- and in discharge of that debt, he issued Ext.P1 cheque. On 24.8.1998, when Ext.P1 was presented for encashment through Thalalyolaparambu Farmers' Co-operative Bank, it was dishonoured for the reason of funds insufficient. Ext.P2 is the acknowledgment. Ext.P3 is the dishonour memo issued from Kottayam District Co-operative Bank. The reason for dishonour was mentioned as 'funds insufficient' (29). Ext.P4 is the memo issued from Farmers' Co-operative Bank. After receipt of the dishonour memo, the 2[nd] respondent issued Ext.P5 notice. But, it was returned as unclaimed. Ext.P7 is the acknowledgment card. Ext.P6 is the postal receipt. This Crl. R.P. No.2465/03 4 oral evidence of PW1 shows that he complied all the statutory formalities. The specific case of the PW1 was that Ext.P1 was issued in discharge of a debt. When it was presented for encashment, there was insufficient amount to honour the cheque. He also issued a demand by writing a notice. There was no payment from the side of the revision petitioner. Analysing the evidence of PW1, I am of the opinion that all the initial formalities were complied in this case. 8. In this context, I have considered whether there is any non-compliance of Section 138(b) of the Negotiable Instruments Act. The specific case of the revision petitioner was that the trial court did not consider that point with regard to non-compliance of Section 138(b). According to the revision petitioner, the address mentioned in Ext.P7 was in the name of a shop and the contents of the notice was written in the house address. These two inconsistent act amounts to non-compliance of Section 138 (b) of the Act. I have carefully scrutnized Ext.P5 notice, in which, the house address is mentioned along with a shop name (Broozly Hair Cutting Centre). The postal address and the house name are mentioned specifically in Exts.P5 and P7. No contra evidence has been adduced by the revision petitioner to rebut the Crl. R.P. No.2465/03 5 contention advanced by the 2[nd] respondent. In the absence of specific evidence with regard to shop address and the house address, I cannot agree with the argument advanced by the learned counsel for the revision petitioner. Therefore, when notice is returned as unclaimed, it is presumed that there is proper compliance of Section 138(b). For this, I rely the decision of the Apex Court in _**The state of Madhya Pradesh**_ v. _**Hiralal & Ors.**_ [JT 1996(1) SC 667] and in _**Bhaskaran**_ v. _**Balan**_ [1999(3) KLT 440(SC)]. In view of the above observation made by the Apex Court, I am of the view that the contention advanced by the revision petitioner is only to be discarded. 9. When execution of the cheque is proved and proper formalities are complied as per Section 138 of the Act, a statutory presumption under Section 139 of the Negotiable Instruments Act will automatically applied. It shall be presumed that unless the contrary is proved, the holder of the cheque received the cheque of the nature referred to in Section 138 for the discharge in whole or in part of any debt or other liability. No rebuttal evidence has been adduced by the revision petitioner in the trial court to prove that Ext.P1 was issued not in discharge of a debt or liability. In the absence of rebuttal evidence, I am of the opinion that a presumption Crl. R.P. No.2465/03 6 under Section 139 will automatically applied. Therefore, the conviction passed by the trial court, which was confirmed by the appellate court is only to be confirmed. 10. The learned counsel appearing for the revision petitioner contended that the sentence portion may be modified. 11. In the result, the sentence passed by the trial court and the appellate court are modified as follows: a) The revision petitioner is sentenced to undergo imprisonment till rising of the court U/s. 138 of the Negotiable Instruments Act b) He is also directed to pay a compensation of Rs.40,000/- under Section 357(3) of Cr.P.C. In default of payment of compensation,he is sentenced to undergo simple imprisonment for one month. The Criminal Revision Petition is disposed of accordingly. ## **P.D. RAJAN, JUDGE.** acd Crl. R.P. No.2465/03 7 Crl. R.P. No.2465/03 8