Sherly Reji vs State Of Kerala

C.Pratheep Kumar, J

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).

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 returned. The accused also failed to discharge the said liability and hence the complaint.

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.

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 ?

Heard Sri.M.V.Thamban, the leaned counsel for the revision petitioner and Smt.Salini Lal on behalf of the 2nd respondent/original complainant.

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.

On the other hand, the learned counsel for the 2nd 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.

Ext.P6 is the returned notice produced by the complainant. From 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.

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.

According  to  PW4,  in  the  instant  case  the  addressee  was 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.

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.

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 petitioner that the accused has not received the statutory notice in respect of the dishonour of Ext.P1 cheque.

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.

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.

In the result, this Revision Petition is allowed in part as follows :-

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.