Roy Thomas v. M.GOPINATHAN and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930** **Crl.Rev.Pet.No. 3189 of 2006()** **------------------------------------------** **CRA.172/2004 of ADDL. SESSIONS COURTS (ADHOC), MAVELIKKARA CC.235/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR** **....................** ## **REVN. PETITIONER: APPELLANT/ACCUSED** **----------------------------------** **ROY THOMAS, KOMADATHUSSERIL HOUSE, KALLISSERY P.O., CHENGANNUR.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT: RESPONDENT / COMPLAINANT/STATE** **---------------------------** **1. M.GOPINATHAN, KAMALA NIVAS, THITTAML MURI, CHENGANNUR VILLAGE, THODUPUZHA TALUK.** **2. STATE OF KERALA - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **ADV. SRI.D.KRISHNA PRASAD FOR R1 SRI.D.NARENDRANATH FOR R1 SRI.M.HARISHARMA FOR R1 SMT.O.K.SANTHA FOR R1** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **M.N. KRISHNAN, J.** **= = = = = = = = = = = = = = CRIMINAL.R.P. NO. 3189 OF 2006 = = = = = = = = = = = = = = = Dated this the 13[th] day of October, 2008.** ## **O R D E R** This revision is preferred against the conviction and sentence passed in C.C.235/00 and confirmed in appeal by the Additional Sessions Judge, Mavelikkara in Crl.A.172/04. The trial court has convicted the accused and sentenced him to undergo simple imprisonment for three months and to pay a compensation of Rs.1,50,000/- u/s 357(3) Cr.P.C. in default to undergo simple imprisonment for one month. The appellate court had modified the sentence to one month and to pay a compensation as ordered by the trial court. It is challenging that decision the revision has been preferred by the accused in the case. 2. Learned counsel for the revision petitioner strongly contends before me that there is no evidence in this case to show the issuance and acceptance of notice and further the transaction alleged by the complainant is also not proved. So far as the notice is concerned the ## CRL.R.P.3189 OF 2006 -:2:- acknowledgment card relating to the same has not been produced before the trial court. The notice, Ext.P5 is addressed to the revision petitioner and the inner part of the notice would clearly indicate that the notice issued is to Roy Thomas of Komadathusseriyil house Kallisserry whereas in the postal receipt house name is shown as Momadathuserri. Learned counsel for the revision petitioner would contend this would indicate that no notice had been properly issued and therefore the initiation of proceedings u/s 138 is invalid in law. 3. Postal receipt is a computer print out and it can be seen from the notice in the inner side that it has been specifically stated in Malayalam the correct name of the accused as well as the correct house name. So the ordinary presumption is, that would be the address which would have been written on the envelop also. 4. I had perused the evidence of PW1 and in the cross examination the solitary suggestion put is whether there is any document to show the service of the statutory ## CRL.R.P.3189 OF 2006 ## -:3:- notice on the revision petitioner. There is nothing shown or asked to the complainant about the non-receipt of the notice and therefore it cannot be stated that there is a total challenge regarding the non-issuance of a notice. 5. It is a common practice that a notice is written in Malayalam and the address is also written in Malayalam and sent to the persons and non familiarity of a postal clerk shall not tend us to hold that notice is not sent to the proper address. Therefore in the light of these principles it has to be held that notice has been properly addressed. 6. The Apex Court has also considered the question of notice in the recent decision reported in _**Alavi Haji v. Muhammed 2007 (3) KLT 77)**_ . It was also a case where there was a contention regarding the non-receipt of notice. The Apex Court held that if that is the contention what should have been done by the accused in the complaint is to tender the amount and request the Court to reject the complaint. Learned counsel in answer to this decision would submit since he is not admitting the transaction he need not ## CRL.R.P.3189 OF 2006 ## -:4:- tender such amount before the Court. As discussed by me earlier it has to be stated that the notice really shows the correct house name and the envelop should have been only in that address and further what prevented the revision petitioner from entering the box and contending that he has not received the notice at all. I am conscious of the provisions u/s 315 Cr.P.C. wherein the non examination or non tendering of evidence by the accused in a case shall not be used against him because it is for the complainant in a criminal prosecution to prove the case. 7. This Court as well as the Apex Court had held that the persons u/s 138 of the N.I. Act has got all the clippings of a civil case and the preponderance of probabilities also may have to be taken into consideration in analyzing and arriving at a decision regarding the correctness and genuineness of the case. So, by applying this broad principles I have absolutely no hesitation to hold that the plea of non production of the acknowledgment card alone cannot militate against the evidence tendered by the ## CRL.R.P.3189 OF 2006 -:5:- complainant and therefore I hold that there is sufficient notice in this case. 8. The next question is regarding the transaction. It is the case of the revision petitioner that there had been previous transactions and he had given large number of blank signed cheques and had even issued Ext.D1 notice on 12.7.99 demanding for return of cheques. The said transaction has taken place in the month of July, 1999 and therefore it is contended that when such a notice is for the return of cheque, the probability is, there would not have been any transaction at least thereafter. Both the Courts below on appreciation of the materials held minor discrepancy in the evidence of PW1 shall not be a ground to reject the case. Just because a notice is issued one cannot hold that there cannot be any other transaction. If really the revision petition was serious after issuance of Ext.D1 certainly he would have initiated action for getting back the cheques or at least would have intimated the Bank to stop payment so that further proceedings can be stalled on the CRL.R.P.3189 OF 2006 -:6:- basis of cheque. This contention of the complainant/revision petitioner only shows that all is not well with this case. PW1, on the other hand has entered the box and given evidence and had faced a searching cross examination which in spite of the same had not been dislodged and there is nothing to show that his evidence is not intrinsically reliable or inherently probable. On facts the Court below had arrived at a decision and it may not be proper for this Court sitting in the revisional jurisdiction to interfere with the concurrent finding of facts especially when it is found that there is no illegality or irregularity in the approach made by the Court below in appreciating the case. Therefore on that ground also revision petitioner is not entitled to succeed. Therefore I hold that the conviction passed by the Court below is proper. 9. Now, the next question is regarding the sentence. After hearing the learned counsel for both sides I feel leniency can be shown in this case and the sentence can be modified by imposing the imprisonment till raising of the Court and also to pay a fine of Rs.1,50,000/- which on ## CRL.R.P.3189 OF 2006 -:7:- realisation can be paid to the complainant. If the amount is not paid, the revision petitioner shall undergo simple imprisonment for a period of six weeks. The revision petitioner shall appear before the trial court to receive the sentence on 14.1.09 and for payment of fine and in default the sentence has to be executed by the trial court thereafter. ## **M.N. KRISHNAN, JUDGE.** ul/-