Jayamma @ Jaya Varghese vs A.Habeeb on 4 September, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 564 of 2001()



1. JAYAMMA @ JAYA VARGHESE
                      ...  Petitioner

                        Vs

1. A.HABEEB
                       ...       Respondent

                For Petitioner  :SRI.S.SANAL KUMAR

                For Respondent  :SRI.M.P.MADHAVANKUTTY

The Hon'ble MR. Justice V.GIRI

 Dated :04/09/2008

 O R D E R
                          V.GIRI, J
                        -------------------
                      Crl.R.P.564/2001
                        --------------------
        Dated this the 4th day of September, 2008

                           ORDER

The accused in C.C.No.245/1998 on the files of the

Judicial First Class Magistrate Court, Ramankary, is the

petitioner herein. She was prosecuted for an offence

punishable under Section 138 of the Negotiable

Instruments Act. The trial Court found the accused guilty

and sentenced her to undergo simple imprisonment for a

period of one year. The accused was also directed to pay

an amount of Rs.1,25,000/- as compensation to the

complainant under Section 357(3) of Cr.P.C. The

conviction and sentence were affirmed by the appellate

Court and hence this revision.

2. The complainant alleged that the accused had

borrowed an amount of Rs.1,25,000/- from the

complainant on 11.6.1996 and on 10.12.1996, in

discharge of the liability, issued Ext.P1 cheque. The

cheque when presented for collection, was dishonoured

for want of sufficient funds. Ext.P4 notice was sent to the

Crl.R.P.564/2001
2

address of the accused, but it was returned with the

endorsement “addressee left”. Ext.P5 is a copy of the

said notice. Apparently to re-affirm his position, the

complainant had send Ext.P7 telegram intimating

despatch of the notice and had also send another copy of

the notice to the address of the husband of the accused

under Ext.P8 certificate of posting.

3. The only defence taken up by the accused as could

be seen from the judgment of the Courts below is that

there was no proper service of notice as such. The

Courts below referred to the fact that the complainant,

apart from testifying to the despatch of the notice to the

address of the accused, had also examined PW3 the

postman, functioning in the area where the accused was

actually residing and within whose jurisdiction the

address mentioned in Ext.P4 was situated. Postman was

acquainted with the accused and had also affirmed that

the address was correct. These aspects were taken note

of by the Court below to find that there is proper

service of notice. Same view has been affirmed by the

appellate Court also.

Crl.R.P.564/2001
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4. I heard learned counsel for the petitioner and

learned counsel for the complainant. I am satisfied with

the findings of the Courts below that there has been

adequate service of notice, in terms of Section 138(b) of

the Act. The accused did not have a case that the address

noted in Ext.P4 was not her correct address. PW3, the

postman who was acquainted with the accused has

correctly identified the same. Despatch of notice was

again affirmed by Ext.P7 telegram and to re-affirm his

position, the complainant had send a copy of the notice

to the address of the husband of the accused under

Ext.P8. Receipt of telegram was proved by Ext.P9. The

contention that there was inadequate service of notice

on the accused as such, was clearly untenable.

5. Learned counsel for the petitioner then submitted

that the accused is a lady and sentence of imprisonment,

in the circumstances, coupled with a direction to pay

compensation for the cheque amount, is excessive.

6. In the facts and circumstances of the case, I am of

the view that the sentence of imprisonment can be

reduced to one till the rising of the Court. But as rightly

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4

pointed out by the learned counsel for the complainant,

it has been more than ten years since the criminal

prosecution has been pending and the quantum of

compensation should reflect the continued detriment

caused to the complainant.

7. In the result, Crl.R.P is allowed in part by

modifying the sentence imposed. The conviction of the

accused under Section 138 of the Act is upheld. In

modifying the sentence imposed by the Courts below,

the accused is sentenced for imprisonment till the rising

of the Court. The accused shall further pay a

compensation of Rs.1,35,000/- to the complainant, within

three months from today.

Party shall appear before the Court below on

17.11.2008, for the accused to undergo the sentence of

imprisonment.

V.GIRI,
Judge

mrcs