A revisional court shall not interfere with concurrent findings of fact unless they suffer from perversity or illegality; furthermore, a notice returned as 'unclaimed' to the correct address is presumed served under law.

ORDER :

1. Under challenge in this revision petition is the conviction and sentence rendered against the revision petitioner under Section 138 of the Negotiable Instruments Act (for short “N.I. Act”).

2. The revision petitioner is the accused in S.T. No. 1913/1998 on the file of the Judicial First Class Magistrate Court, Mannarkad.

3. The case of the complainant is that the accused borrowed a sum of Rs.50,000/- from him and, in discharge of the said liability, issued a cheque for the said amount in his favour. However, upon presentation, the cheque was dishonoured on the ground of “insufficient funds.” Thereafter, the complainant issued a statutory notice to the accused informing him of the dishonour and demanding payment of the cheque amount. Hence, the accused is alleged to have committed an offence punishable under Section 138 of the N.I. Act. Though the postal authority intimated the accused regarding the statutory notice issued, the same was returned as “unclaimed.” According to the complainant, even after issuance of the notice, no payment whatsoever was made by the accused, and therefore, he is liable for the offence under of the N.I. Act.

4. During the trial, the complainant was examined as PW1, and another witness was examined on his side as PW2. The documents produced on behalf of the complainant were marked as Exts. P1 to P5. On the side of the defence, DW1 and DW2 were examined, and Exts. D1 and D2 series were marked.

5. On appreciation of the evidence on record, the trial court found the accused guilty of the offence punishable under Section 138 of the N.I. Act and convicted him. The accused was sentenced to undergo simple imprisonment for a period of three months and to pay compensation of Rs.50,000/- to the complainant under Section 357(3) of the Code of Criminal Procedure.

6. Aggrieved by the said judgment, the accused preferred Crl. A. No. 59 of 2003 before the Sessions Court. The learned Additional Sessions Judge (Fast Track Court-II), Palakkad, upon hearing the appeal, allowed the same in part. While confirming the conviction recorded by the trial court under Section 138 of the N.I. Act, the appellate court reduced the sentence of imprisonment to one month. The accused was further directed to pay a sum of Rs.50,000/- to the complainant as compensation under Section 357(3) of the Cr.P.C. In default of payment of compensation, the accused was sentenced to undergo simple imprisonment for a further period of one month.

7. Heard the learned counsel appearing for both sides and perused the records.

8. The learned counsel for the revision petitioner contended that both the trial court and the appellate court failed to properly appreciate the evidence and arrived at a finding of guilt without due application of mind. It was further urged that the complainant failed to establish the alleged transaction as well as the execution of Ext. P1 cheque. The learned counsel strenuously contended that although the complainant claims to have issued a statutory notice as mandated under the N.I. Act, no such notice was actually received by the accused, and therefore the mandatory procedural requirements for initiating prosecution under Section 138 of the N.I. Act has not been complied with.

9. Per contra, the learned counsel for the first respondent submitted that all necessary formalities for initiating prosecution under Section 138 of the N.I. Act has been duly complied with in this case, and the contrary contentions are unsustainable. It was contended that the notice issued to the accused was returned as “unclaimed” and therefore there is a presumption of service in view of Section 27