Mathew Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 14TH DAY OF NOVEMBER 2014/23RD KARTHIKA, 1936** **Crl.Rev.Pet.No. 1954 of 2014 ()** **------------------------------------------** **AGAINST THE JUDGMENT IN CRA 493/2007 of SESSIONS COURT,KOTTAYAM, DATED 13-08-2008 & AGAINST THE JUDGMENT IN CC 582/2004 of J.M.F.C. - I, ETTUMANUR, DATED 08-06-2007** ## **REVISION PETITIONER(S)/APPELLANT/ ACCUSED:** **------------------------------------------------------------------------** **MATHEW JOSEPH, AGED 57 YEARS, S/O JOSEPH, CHEKKATHADATHIL HOUSE, ATHIRAMPUZHA P.O., ETTUMANOOR, KOTTAYAM DISTRICT.** **BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENT(S)/RESPONDENTS/ COMPLAINANT/ STATE:** **-----------------------------------------------------------------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031** ## **2. K.P. KRISHNANKUTTY,** **SREENILAYAM, IDDIVETTUKALAYAL HOUSE, PEROOR P.O., KOTTAYAM DISTRIC- 686 637** **R1 BY PUBLIC PROSECUTOR SRI. N. SURESH R2 BY ADV. SMT. P.G.BABITHA** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ss** ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.1954 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 14[th] day of November, 2014 ## **O R D E R** Accused in C.C.No.582/2004 on the file of Judicial First Class Magistrate Court, Ettumanoor, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the second respondent/complainant herein, against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). 2. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of 1,00,000/-₹ and in discharge of that liability, he had issued Ext.P1 cheque, which when presented was dishonored for the reasons ‘funds insufficient’, evidenced by Ext.P2 dishonour memo and this was intimated to the complainant by his banker vide Ext.P3 memo. The complainant issued Ext.P4 2 Crl. R. P. No.1954 of 2014 notice, dated 23.03.2014 on the same day vide Ext.P5 postal receipt, the same was returned with endorsement ‘unclaimed’, evidenced by Ext.P6 returned notice. The revision petitioner had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint. 3. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P6 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, he had not committed any offence and he had borrowed only Crl. R. P. No.1954 of 2014 3 ₹50,000/- from the complainant and Ext.P1 cheque was issued as blank signed cheque and though the amount was paid, the cheque was not returned. But he had not adduced any evidence in defence to prove his case. After considering the evidence on record, the learned magistrate found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for two months and also to pay the cheque amount of ₹1,00,000/- as compensation to the complainant, in default to undergo simple imprisonment for two months under Section 357(3) of the Code. Aggrieved by the same, the revision petitioner filed Criminal Appeal No.493/2007 before the Sessions Court, Kottayam, which was made over to the Additional Sessions Court, Kottyam, for disposal and the learned Additional Sessions Judge by impugned judgment allowed the appeal in part, confirming the order of conviction and direction to pay compensation 4 Crl. R. P. No.1954 of 2014 with default sentence, but modified the sentence by reducing substantive sentence to imprisonment, till rising of the court. Dissatisfied with the same, the present revision has been filed by the revision petitioner/accused before the court below. 4. Heard the counsel for the revision petitioner, respondent and the learned Public Prosecutor. 5. The counsel for the revision petitioner submitted that, the evidence of PW1 is not sufficient to prove the execution of the cheque and the courts below were not justified in relying on the presumption to convict him. 6. The counsel for the 2[nd] respondent submitted that, concurrent findings of the court below do not call for any interference. Public Prosecutor also supported the submission of the 2[nd] respondent. 7. The case of the complainant in the complaint 5 Crl. R. P. No.1954 of 2014 was that, revision petitioner borrowed a sum of 1,00,000/-₹ and in discharge of that liability, he had issued Ext.P1 cheque for the said amount in favour of the complainant. The case of the revision petitioner was that, he borrowed only 50,000/- and as security for the same, he had given a₹ blank signed cheque and though he paid the amount, the cheque was not returned and mis-using the cheque the present complaint was filed. In order to prove the case of the complaint, complainant himself was examined as PW1 and deposed in support of his case in the complaint. Though he was cross examined at length, nothing was brought out to discredit his evidence, regarding the revision petitioner borrowing the amount and issuing the cheque in discharge of that liability. The revision petitioner had not adduced any evidence to prove his case. Mere denial or making suggestion alone is not sufficient to dislodge the presumption available under Section 139 of the Act. In the 6 Crl. R. P. No.1954 of 2014 absence of any evidence adduced on the side of the revision petitioner, the courts below were perfectly justified in relying on the evidence of PW1 and the presumptions available under Section 139 and 118 of the Act rightly coming to the conclusion that, the revision petitioner had issued Ext.P1 cheque in discharge of his liability for the amount due from him to the complainant. Notice was returned with endorsement ‘unclaimed’ and the revision petitioner had no case that, he will not be served with notice in that address. He did not adduce any evidence to prove that, it is not the correct address as well. In the absence of any evidence on this aspect, if a notice has been issued in the correct address by registered post and if it is returned with endorsement ‘unclaimed’ after due intimation, then it can only be presumed that, it was deemed to have been served on the revision petitioner and that will be sufficient service under Section 138 of the Act. 7 Crl. R. P. No.1954 of 2014 So he had no case that he had paid the amount after getting knowledge of the sending of notice. So the courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below on this aspect do not call for any interference. 8. As regards the sentence is concerned, the courts below have sentenced the revision petitioner to undergo simple imprisonment for two months and directed to pay the cheque amount of 1,00,000/-, as compensation₹ to the complainant, in default to undergo simple imprisonment for two months under Section 357(3) of the Code. The appellate court had reduced the substantive sentence to, imprisonment till rising of the court, retaining the direction to pay compensation with default sentence under Section 357(3) of the Code of Criminal Procedure. So maximum leniency has been shown by the appellate court in 8 Crl. R. P. No.1954 of 2014 imposing the sentence as well. So this court does not find any reason to interfere the sentence imposed, as it cannot be said to be excessive or harsh. 9. While this court was about to dispose of the case, the counsel for the revision petitioner submitted that the amount has already been paid to the respondent. If the amount has already been paid to respondent and if he is able to produce the proof of payment by producing the receipt before the court below and that is being acknowledged by the complainant before the court below by appearing in person or through counsel, then it will be treated as proper compliance of the order to pay compensation directly to the complainant, as directed by this court and if this is proved to the satisfaction of the court below, then the court below is directed to record the same in the respective registers as provided in the decision reported in **(2010(2) KLT 1017) Beena v. Balakrishnan** 9 Crl. R. P. No.1954 of 2014 **Nair and Another** and **(2012(4) KLT 21) Sivankutty v. John Thomas and Another** and permit the revision petitioner to serve substantive sentence of imprisonment, till rising of the court and close the case as provided in the above decisions. The revision petitioner is directed to surrender before the concerned magistrate court on or before 27.11.2014, till then, the execution of the sentence is directed to be kept in abeyance. Office is directed to communicate this order to the concerned court immediately and issue copy of the order to the counsel for the revision petitioner as per law, immediately. With the above direction and observation, the revision petition is dismissed. Sd/- **K. Ramakrishnan, Judge** // True Copy // P.A. to Judge ss Crl. R. P. No.1954 of 2014 10