Kerala High Court
Sherly Reji vs State Of Kerala on 8 November, 2024
Crl.R.P.1269/2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
CRL.REV.PET NO. 1269 OF 2017
CRA NO.209 OF 2014 OF ADDITIONAL SESSIONS COURT-I,
MAVELIKKARA
ST NO.612 OF 2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS
- II, MAVELIKKARA
REVISION PETITIONER/APPELLANT/ACCUSED
SHERLY REJI,AGED 40 YEARS
W/O. REJI,CHARUVUPARAMBIL THEKKETHIL,NOORNADU
VILLAGE, MAVELIKKARA TALUK, ALAPUZHA DISTRICT
BY ADVS.
SRI.ARUN BOSE
SRI.B.BIPIN
SRI.R.REJI
SMT.THARA THAMBAN
RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM PIN 682 018
2 KAMALA SURESH, AGED 45 YEARS, W/O.
SURESH,GIREESHALAYAM, PATOOR (PO),PADANILAM,
ALAPUZHA DISTRICT, PIN 690 529
BY ADVS.
SMT.A.SALINI LAL
SRI.R.SUNIL KUMAR
Smt.Maya.M.N.,P.P.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 5.11.2024, THE COURT ON 08.11.2024, DELIVERED THE
FOLLOWING:
Crl.R.P.1269/2017
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ORDER
[Crl.Revision Petition No.1269 of 2017]
Dated : 8th November, 2024
This Criminal Revision Petition has been preferred by the appellant in
Crl.Appeal 209/2014 on the file of the Additional Sessions Judge-I,
Mavelikara, against the judgment dated 18.9.2017 confirming the conviction
rendered and sentence passed by the Judicial Magistrate of First Class-II,
Mavelikara, in S.T.No.612/2011 under Section 138 of the Negotiable
Instruments Act (N.I. Act for short).
2. The case of the complainant is that on 1.8.2011 the accused
borrowed a sum of Rs.1,50,000/- from him and towards the discharge of the
said liability, he issued a cheque for the said amount drawn on Federal Bank
Ltd, Chunakkara Branch dated 12.9.2011. When the said cheque was presented
for encashment through State Bank of Travancore, Nooranadu Branch, it was
dishonoured for want of sufficient funds in the account of the accused.
Thereafter, the complainant issued a lawyer's notice to the accused intimating
the dishonour of the cheque and demanding the payment. However, the
accused purposefully evaded the service of the notice, though proper
intimation was given by the postal authorities and therefore, the notice was
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returned. The accused also failed to discharge the said liability and hence the
complaint.
3. The evidence in the case consists of the oral testimonies of PWs1
to 4 and Exts.P1 to P7. On the side of the accused, DW1 was examined and
Exts.D1 and D2 were marked. After evaluating the available evidence, the
learned Magistrate found the accused guilty of the offence under Section 138
of the N.I. Act and sentenced her to undergo simple imprisonment for three
months and to pay a fine of Rs.1,50,000/- to the complainant. It is also ordered
that in case of default in payment of the compensation, the accused shall
undergo simple imprisonment for three months. In appeal, the learned Sessions
Judge confirmed the finding of the learned Magistrate and dismissed the
appeal. Dissatisfied with the above judgment of the Sessions Judge, the
accused preferred this Revision raising various grounds.
4. Now the point that arise for consideration is the following :-
Whether the impugned judgment of the learned Sessions Judge
confirming the conviction rendered by the learned Magistrate
against the revision petitioner under Section 138 of the N.I Act is
liable to be interfered with, in the light of the grounds raised in the
Revision Petition ?
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5. Heard Sri.M.V.Thamban, the leaned counsel for the revision
petitioner and Smt.Salini Lal on behalf of the 2nd respondent/original
complainant.
6. The point :- Though in the Revision Petition the accused has taken
several contentions, at the time of argument the learned counsel for the
revision petitioner has raised only the contention that the accused has not
received the statutory notice send by the 2nd respondent. Therefore, it was
argued that the ingredients of the offence under Section 138 of the N.I. Act are
not proved in this case. In the light of the above contention, the learned
counsel prayed for acquitting the accused by allowing the Revision Petition.
7. On the other hand, the learned counsel for the 2 nd respondent
would argue that there is sufficient evidence to prove that the complainant has
despatched the notice to the accused in the correct address and also that in
spite of giving intimation by the postal authorities, the accused deliberately
returned the same. Therefore, she would argue that there is no merit in the
argument advanced by the revision petitioner that she has not received any
statutory notice. In the light of the above argument, the learned counsel for the
2nd respondent prayed for dismissing the revision petition.
8. Ext.P6 is the returned notice produced by the complainant. From
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the endorsements on Ext.P6, it can be seen that when the above postal article
was brought to the addressee on 16.11.2011, the addressee was absent and
hence intimation was dropped. On 17.11.2011 and 18.11.2011 also, there is
entries regarding the absence of the addressee.
9. In order to prove the above endorsement, the complainant
examined three witnesses namely PWs2 to 4. Out of which, PWs2 and 3
deposed that only the postwoman who was actually entrusted with the
delivery of Ext.P6 could give the correct version regarding the delivery of
Ext.P6. PW4 is the postwoman who was authorised to deliver Ext.P6. At the
time of evidence, PW4 would swear that she worked as postwoman in the
same beat for about eight years. In clear terms she deposed that the accused
was permanently residing in the address shown in Ext.P6 and that is why she
had given intimation to the addressee. According to PW2, if the addressee
leaves the place, the postal article will be returned with an endorsement 'the
addressee left'. Only in case the addressee continues to reside in the same
address, it will be recorded as addressee absent and intimation will be given. If
the article is not collected in spite of giving intimation, it will be returned to
the sender.
10. According to PW4, in the instant case the addressee was
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permanently residing in the address shown in Ext.P6 and it is very well known
to her. She had delivered several other postal articles to the accused in the very
same address. No intimation regarding change of address was also given by
the addressee. It was in the above context, she gave intimation to the addressee
and made such an endorsement in Ext.P6. Therefore, from the evidence of
PW4 it is revealed that Ext.P6 lawyer notice was sent by the complainant in
the correct address of the accused.
11. Moreover, during the cross-examination of the accused as DW1,
she admitted that for some period, she resided in the above address and
thereafter, she left that address. However, she had not specified the period in
which she had resided in the said address and the date on which she left that
address. She has no case that she had informed the postal authorities about any
change of address. The above admission given by DW1, in fact supports and
corroborates the evidence of PW4 that the address shown in Ext.P6 was the
correct address of the accused during the relevant period.
12. Since the second respondent sent Ext.P6 notice in the correct
address of the accused, there is sufficient compliance regarding the statutory
notice. Therefore, from the above discussions, it can be seen that there is no
merits in the argument advanced by the learned counsel for the revision
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petitioner that the accused has not received the statutory notice in respect of
the dishonour of Ext.P1 cheque.
13. No other grounds were raised by the learned counsel for the
revision petitioner in support of the revision petition. On a perusal of the
evidence on record, it can be seen that the complainant has proved all the
requirements necessary for constituting the offence under Section 138 of the
N.I. Act and as such I do not find any valid grounds to interfere with the
impugned judgment sustaining the conviction under Section 138 of the
N.I.Act.
14. The trial court as well as the appellate court had imposed a
sentence of imprisonment for three months and to pay a compensation of
Rs.1,50,000/- to the complainant. There is also a direction to undergo simple
imprisonment for three months, in case the amount of compensation is not
paid. Considering the fact that the revision petitioner is a woman, I hold that
substantive sentence of three months imposed on the revision petitioner is on
the higher side. In the above circumstance, considering the entire facts I hold
that, the substantive sentence of imprisonment is to be reduced to one month.
Point answered accordingly.
15. In the result, this Revision Petition is allowed in part as follows :-
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While sustaining the conviction under Section 138 of the N.I Act, the
substantive sentence of imprisonment is reduced to simple imprisonment for
one month. The amount of compensation awarded and the default sentence in
that respect are sustained as such.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/6.11
