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V.S. SAIJU versus P.C. ANTONY, PATTAPARAMBIL HOUSE

High Court of Kerala

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V.S. SAIJU v. P.C. ANTONY, PATTAPARAMBIL HOUSE - Crl Rev Pet No. 2533 of 2006 [2006] RD-KL 353 (26 July 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2533 of 2006()

1. V.S.SAIJU,
... Petitioner

Vs

1. P.C.ANTONY, PATTAPARAMBIL HOUSE,
... Respondent

2. STATE OF KERALA,

For Petitioner :SRI.ANIL GEORGE

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :26/07/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 2533 of 2006
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Dated this the 26th day of July, 2006

O R D E R

This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act.

2. The cheque is for an amount of Rs. 1,50,000/- It bears the date 22.2.2001. Signature in the cheque is admitted. Handing over of the cheque is not disputed. In the course of the trial the accused took up a contention that the cheque was issued not for the discharge of any legally enforcible debt/liability, but only as a blank signed cheque as security when an amount of Rs.25,000/- was borrowed by the accused from the complainant in 1998.

3. A notice of demand was allegedly issued. There is some confusion as to whether Ext.P3 or P5 is the copy of the notice sent. Initially it was asserted that the original of Ext.P3 was sent. Later it was asserted that it was the original of Ext.P5 which was sent. There Crl.R.P.No. 2533 of 2006 2 is no much difference between Exts.P3 and P5 except that the date of the notices differ. The complainant examined himself as PW1 and proved Exts.P1 to P5. On the side of the accused DWs. 1 to 3 were examined and Exts.D1 and D2 were marked. The learned counsel for the petitioner submits that it is not necessary to advert to the evidence of DW3 and Exts.D1 and D2, which have no direct bearing or relevance to the challenge. DW1 is the Administrator of a School, where the complainant had done some plumbing work. The petitioner and the complainant are admittedly friends and plumbers. DW1 was examined by the petitioner in support of his assertion that the complainant could not have had the amount of Rs.1,50,000/- available with him. DW1, though examined by the accused, did not support that version and his evidence indicates that an amount of Rs.1,50,000/- could have been available with the complainant and at any rate it was not an impossibility. DW2 was examined by the petitioner in support of his contention that the others cheque which came out of the cheque book from which Ext.P1 cheque could have come, were encashed earlier in the account of the petitioner.

4. The courts below anxiously considered all the relevant Crl.R.P.No. 2533 of 2006 3 contentions and concurrently came to the conclusion that all ingredients of the offence punishable under Section 138 of the N.I. Act have been established and that the petitioner has not succeeded in establishing the defence urged by him. Accordingly they proceeded to pass the impugned concurrent judgments.

5. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner only reiterates the contentions that were raised before the courts below. The first contention that deserves to be considered is that Ext.P4 acknowledgment card is not signed by the petitioner. There is no dispute that Ext.P4 bears the correct address of the petitioner. It is true that the postal receipt has not been produced by the complainant. Notice was sent by the counsel. Ext.P4 acknowledgment card clearly shows that a registered letter addressed to the accused in his correct address by pre-paid post was acknowledged by some one. The petitioner wants to rely on want of congruity between his admitted signatures and the signature in Ext.P4. From that he contends that he had not acknowledged the receipt of the notice under Ext.P4. I find absolutely Crl.R.P.No. 2533 of 2006 4 no merit in the contentions raised.

6. The burden under Section 138 of the N.I. Act on the complainant is " to give notice". It is trite by now that this burden on the complainant is discharged when notice by pre-paid post is despatched to the addressee. Significantly there is no contention that the address shown on Ext.P4 is not correct. Ext.P4 shows that the registered letter addressed to the accused in his correct address was sent and the acknowledgment card was returned with a signature purporting to be that of the petitioner/accused. It is true that the postal receipt has not been produced. It is true that the complainant has been prevaricated on the question whether Ext.P3 or P5 is the copy of the notice despatched . But all these will not militate against the case of the complainant. When Ext.P4 is produced to show acknowledgment, it would be idle, puerile and unreasonable for the court to still look for evidence of despatch of the postal article acknowledged under Ext.P4. The said contention does not appeal to me. The same must fail.

7. Regarding the contention that the cheque was handed over as a signed blank cheque as security, there are circumstances loaded against the petitioner. The very theory conveniently raised that a blank signed cheque Crl.R.P.No. 2533 of 2006 5 was handed over deserves careful, cautious, nay suspicious approach. Such defence cannot be readily swallowed. At any rate, the burden must fall on the person who raises such an artificial defence. The burden under Section 139 of the N.I. Act does also stare at the petitioner. I am of the opinion that the complainant has satisfactorily discharged his burden and the attempt of the accused by examination of DWs. 1 to 3 and Exts.D1 and D2 fails significantly short of the expected mark which he is to accomplish. In these circumstances the challenge raised on merits must necessarily fall to the ground.

8. The counsel then prays that leniency may be shown. The petitioner now faces a sentence of imprisonment till rising of court. There is also a direction to pay an amount of Rs.1,75,000/- as fine. The complainant has been compelled to fight two rounds of unnecessary legal battle by now and wait from 22.2.2001 for the redressal of his genuine grievances. I am not able to agree that the sentence imposed is excessive as to justify intervention by this court.

9. The learned counsel finally prays that the petitioner may be granted some further time to appear before the learned Magistrate to serve Crl.R.P.No. 2533 of 2006 6 the sentence. I am not satisfied that any further leniency needs or deserves to be shown. However it can be directed that the petitioner shall appear before the trial court on 30.9.2006 to serve the impugned sentence. Till then the sentence shall not be executed. If the petitioner does not so appear, the learned Magistrate shall thereafter take necessary steps to execute the impugned sentence.

10. In the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of notice to the respondent.

11. This revision petition is hence dismissed with the above observations/directions. (R. BASANT) Judge tm


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