## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE K.HARILAL**
**TUESDAY, THE 23RD DAY OF JULY 2013/1ST SRAVANA, 1935**
## **Crl.Rev.Pet.No. 2220 of 2003 ( )**
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## **CRL.A.NO. 90/1999 OF ADDL.DISTRICT & SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA**
**............ CC.NO. 111/1996 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, PATHANAMTHITTA --------------------------------**
## **REVISION PETITIONER/APPELLANT/ACCUSED:**
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## **M.S.SURESH, MULLASSERIL HOUSE, NARANGANAM.**
## **BY ADV. SRI.P.KURUVILLA JACOB**
## **RESPONDENTS/COMPLAINANT :**
**-----------------------------------------------------**
## **1. VARGHESE PHILIP, PULOOR, KOZHENCHERRY.**
**2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
## **R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**sts**
## **K.HARILAL, J.**
= = = = = = = =
## **Crl.R.P.No.2220 of 2003**
= = = = = = = = = = = = = = = Dated this the 23[rd] day of July, 2013
## **O R D E R**
The Revision petitioner is the accused in C.C.No.111/1996 on the files of the Judicial First Class Magistrate Court-I, Pathanamthitta. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'), on a complaint filed by the 1[st] respondent herein. After trial, the learned Magistrate found the revision petitioner guilty of the offence punishable under Section 138 of the N.I. Act and convicted thereunder. He was sentenced to undergo simple imprisonment for six months. Though he had preferred Crl.A.No.90/1999, the learned Sessions Judge, after reappreciating the evidence on record, confirmed the conviction and sentenced thereon. This revision petition is filed challenging the concurrent findings of conviction and sentence on various grounds.
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2. To prove the execution and issuance of the cheque, the complainant was examined as PW1 and three other witnesses were examined as PWs.2 to 4 and Exts.P1 to P9 were marked. In defence, the accused contended that he received Rs.9,000/- only from the complainant for the purpose of his business and issued a blank cheque for security for the said transaction. Hence, the disputed cheque has no consideration but no evidence either oral or documentary had been adduced to substantiate the said contention.
3. The evidence of PW1 is that the accused borrowed an amount of Rs.52,000/- from the complainant and in discharge of that debt, issued a cheque for an amount of Rs.52,000/- in favour of the complainant. When he presented the cheque for collection, the same was dishonoured and returned for want of sufficient funds. Though he caused to issue a lawyer's notice to the accused, the accused intentionally returned the same without
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acceptance. He has not paid the cheque amount. Thus, the accused has committed the offence punishable under Sec.138 of the N.I Act.
4. The main contention raised in this revision petition is that no notice under Sec.138(b) of the N.I.Act had been sent to the revision petitioner/accused. Hence, the courts below ought to have found that the complaint itself was not maintainable. Admittedly, the notice had been sent and the same was returned with an endorsement 'unclaimed'. Under Sec.138(b) of the N.I.Act, it is obligatory on the part of the complainant to sent legal notice demanding cheque amount within 15 days of the receipt of information from the bank regarding the return of the cheque as unpaid. On the strength of Exts.P3 and P4, the complainant contended that he has issued a legal notice and the same was returned as unclaimed which is evident by Exts.P3 and P4. Obviously, the notice is intended to give knowledge to the accused about the dishonour of the cheque. To prove the
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service of notice, PWs.3 and 4 were examined. According to PW3 Postman, he went to the residence of the accused on 17/01/1996. On that day, the accused was not in his residence and the same was intimated to the members of his family. The next day he went to the residence of the accused. On that day also, the accused was absent. Hence, he issued intimation about the notice to one Helen Mathew and thereafter the article entrusted to PW4, Postmistress. The issuance of intimation with regard to Ext.P4 to Helen Mathew is evidenced from Ext.P8 acknowledgment. Even after giving intimation Ext.P4 was kept in the post office by PW4 for six days and the accused failed to accept the same. It was returned as unclaimed on 25/01/1996.
5. According to the accused, he was not in station since he had been in Tamilnadu during that period and postman failed to notice the fact that the accused was in Tamilnadu. But no evidence has been adduced to show during the relevant period he had been in Tamilnadu. After
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analyzing Ext.P4, the court below found that address written in the letter was same as seen in vakalath and the summons issued by the court to the accused. After analyzing the evidence, the court below found that oral evidence of PWs.3 and 4 coupled with Exts.P3, P4 and P9 are sufficient to prove the fact that, though notice has been sent to the Revision petitioner as provided under Sec.138(b) of the N.I.Act, the Revision petitioner purposefully evaded from delivery of the same to him. I do not find any kind of perversity in the appreciation of evidence. Moreover, I find that as regards the notice, the presumption under Sec.27 of the General Clauses Act also will come into play. As per Sec.27 of the General Clauses Act, when a notice is sent in correct address by registered post, there is a presumption in favour of the sender than it is duly served unless the contrary is proved. Here, Exts.P4 and P9 show that notice has been sent in the address shown in the summons which had been accepted by the Revision petitioner and the
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vakalath filed before the court. The burden is on the Revision petitioner to rebut the above presumption. But no evidence has been adduced to rebut the presumption by examining Helen Mathew who is said to have received the intimation.
6. That apart, going by the impugned judgment, it could be seen that the complainant/1[st] respondent was successfully discharged initial burden of proving the execution and issuance of the cheque; whereas the Revision petitioner/accused miserably failed to rebut the presumption under Sec.118(a) and 139 of the N.I.Act. There is no illegality or impropriety in the above findings and also I do not find any kind of perversity in the appreciation of evidence from which those findings have arrived at.
7. Coming to sentence, I am of the opinion that the sentence imposed on the Revision petitioner is excessive and disproportionate with nature and gravity of the offence.
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8. The Supreme Court, in the decision in **Kaushalya Devi Massand v. Roopkishore** (AIR 2011 SC 2566) **,** held that the offence under Section 138 of the N.I. Act is almost in the nature of civil wrong which has been given criminal overtone, and imposition of fine payable as compensation is sufficient to meet the ends of justice. Further, in **Vijayan vs. Baby (** 2011(4) KLT 355), Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic. So, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect.
9. In view of the above decisions, I am inclined to modify the sentence imposed on the Revision petitioner by the Trial Court and confirmed by the Appellate Court. In supersession of the sentence imposed by the Trial Court and confirmed by the Appellate Court, the Revision petitioner will stand sentenced as follows:
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i. The Revision petitioner shall undergo simple imprisonment for one day till rising of the court.
ii. The Revision petitioner shall pay a fine of Rs.52,000/- and the same shall be given to the complainant/1[st] respondent as compensation.
iii. In default, the Revision petitioner shall undergo simple imprisonment for three months.
This revision petition is disposed of accordingly.
**K.HARILAL, JUDGE.**
## **Stu**
//True copy//
P.A to Judge.
