Kerala High Court
Ramanathan.K vs Prabhakara Menon on 1 July, 2009
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1991 of 2009()
1. RAMANATHAN.K., S/O.GOPALAN NAIR,
... Petitioner
Vs
1. PRABHAKARA MENON, S/O.PANKU MENON,
... Respondent
2. STATE OF KERALA REP. BY THE PUBLIC
For Petitioner :SRI.BINOY VASUDEVAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :01/07/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.1991 of 2009
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Dated this the 1st day of July, 2009.
ORDER
Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2.
2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track Court No.II, Palakkad in Crl.Appeal No.61 of 2006 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, "the Act). Respondent No.1 preferred a private complaint alleging that petitioner borrowed Rs.10,000/- from him in November, 1997 and for discharge of that liability issued Ext.P1, cheque dated 10.12.1997. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2, P3 and P6. Respondent No.1 issued statutory notice to the petitioner on 21.2.1998 by registered post intimating dishonour and demanding payment of the amount. According to respondent No.1, inspite of giving intimation to the petitioner about registered notice he did not claim it and hence it was returned unclaimed. Ext.P4 series are copy of notice and postal receipt produced by respondent No.1 to show that statutory notice was issued to the petitioner. Ext.P5 is the returned notice. Respondent No.1 gave evidence as PW1 and testified to the transaction. Petitioner claimed that he had Crl.R.P.No.1991/2009 2 borrowed Rs.10,000/- from respondent No.1, respondent No.1 obtained cheque for Rs.10,000/- and though he had returned that amount, respondent No.1 retained the cheque and that has been misused. Petitioner examined DW1. DW1 claimed that he had advanced Rs.10,000/- to the petitioner for repayment of the debt towards respondent No.1. DW1 claimed that he had accompanied the petitioner to the house of respondent No.1 for repayment of the said sum. Courts below did not accept contention of petitioner and found in favour of due execution of the cheque for discharge of a legally enforceable debt/liability. Learned magistrate convicted petitioner and sentenced him to undergo simple imprisonment for one month and payment of compensation of Rs.15,000/- with default sentence of imprisonment for one month. Appellate court confirmed the conviction and sentence. Learned counsel contended that due execution of the cheque is not proved and that at any rate there is no evidence to show that notice was tendered to the petitioner.
3. This case originally ended in acquittal of petitioner. That was on the finding that service of notice on petitioner is not proved. That acquittal was challenged by respondent No.1 in this Court in Crl.Appeal No.548 of 1999. This Court set aside the acquittal and remitted the case to the trial court for fresh disposal with opportunity for both sides to adduce further evidence. While ordering remand this Court observed that it has come out in evidence that there was an endorsement on Ext.P5, "not claimed. returned" but there is no proof for sending the notice in correct address and that endorsement made by the postal authority was after due enquiry. After remand, parties did not adduce any Crl.R.P.No.1991/2009 3 further evidence. Learned magistrate heard both sides and decided that there is proper service of notice on petitioner. It is accordingly that he was found guilty, convicted and sentenced as aforesaid.
4. So far as service of notice is concerned, it has come out in evidence that notice was issued to the petitioner in his correct address. No attempt was made by petitioner to show that there was any mistake in his address mentioned in Ext.P4 series and Ext.P5. Ext.P5 contained the endorsement that intimation was served on petitioner on 23.2.1998, 24.2.1998 and on 5.3.1998 and since it was not claimed, it was returned 'unclaimed'. Section 27 of the General Clauses Act provided for a presumption that when a notice is issued by registered post in correct address, it reached the addressee. Supreme Court has held so in Alavi Haji v. Muhammed (2007(3) KLT 77). In this case that presumption applies with all vigour. There is also the endorsements on Ext.P5 that on three occasions intimation was given to the petitioner. Petitioner did not make any attempt to show that the endorsements on Ext.P5 are not correct. Those endorsements are made by the postman in discharge of his official duty which in the absence of evidence to the contra should be presumed to be regular and proper. Appellate court has considered the above aspect in the light of the decision of the Supreme Court referred above and found that the contention of petitioner regarding lack of notice would not lie. I do not find reason to interfere with that finding.
5. Then the question is whether due execution of the cheque is proved. Learned counsel in all fairness said that even at the time of acquittal of Crl.R.P.No.1991/2009 4 petitioner by the learned magistrate on the earlier occasion it was found in favour of due execution of the cheque. This Court while disposing of Crl.Appeal No.548 of 1999 did not find against due execution of the cheque but only said that since the case was being remanded to the trial court, both sides are given opportunity to adduce evidence in support of their contention. It is the case of petitioner that he had borrowed Rs.10,000/- from respondent No.1 and on that occasion he had given Ext.P1, cheque to respondent No.1. Petitioner admits that Ext.P1 is drawn by him on the account maintained by him. His defence is a plea of discharge. He would say that Rs.10,000/- paid to respondent but the latter retained the cheque. DW1 claimed that he advanced Rs.10,000/- to the petitioner for repayment to respondent No.1 and had accompanied petitioner to the house of respondent No.1 for the said purpose. Courts below were not impressed by that evidence. Assuming that the said amount was paid to respondent No.1, petitioner in the normal course would have asked for return of the cheque. If he has a case that he asked for the cheque but it was not returned, petitioner should have taken steps to get back the cheque. A negotiable instrument which created liability on the petitioner has been produced by respondent No.1 from his custody. I do not find material to hold that respondent No.1 was in illegal custody of the cheque and inspite of the amount being repaid, presented it for encashment. Refusal of the petitioner to claim the notice inspite of intimation show that he was aware of the claim being made on behalf of respondent No.1 Nothing is brought out to disbelieve the claim of respondent No.1 that the amount was not paid to him. Courts below have Crl.R.P.No.1991/2009 5 considered the evidence and found in favour of due execution of the cheque for discharge of a legally enforceable debt/liability. Courts below also found that presumption under Section 139 of the Act has not been rebutted by the petitioner. Conviction of the petitioner required no interference.
6. So far as sentence awarded is concerned, learned counsel requested for leniency. Considering the nature of offence and all relevant factors I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation of Rs.15,000/- to respondent No.1.
7. Learned counsel requested that three months' time may be granted to the petitioner to deposit compensation in the trial court. The transaction which the courts below found in favour of respondent No.1 was in November, 1997 and and this case was filed in the year, 1998. Inspite of that, in the light of the submission by learned counsel concerning the financial difficulty of petitioner, I am inclined to grant two months' time to deposit compensation.
Resultantly this revision is allowed in part to the following extent:
i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court.
ii. Petitioner is granted two months' time from this day to deposit in the trial court for payment to respondent No.1 Rs.15,000/- (Rupees fifteen thousand only) as compensation as ordered by the learned magistrate. In case of default, petitioner has to undergo simple imprisonment for two months.
iii. It is made clear that it will be sufficient compliance of Crl.R.P.No.1991/2009 6 the direction for payment of compensation if petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the said period of two months.
Petitioner shall appear in the court below on 7.9.2009 to receive the sentence.
THOMAS P.JOSEPH, Judge.
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