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Cites 2 docs
Section 138 in The Negotiable Instruments Act, 1881
Section 27 in The General Clauses Act, 1897
Citedby 2 docs
S.Sumathi vs R.Sharavanakumar on 30 April, 2013
P.P. Amina vs State Of Kerala on 20 March, 2009

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Kerala High Court
Radha .S vs K.Satheendran Nair on 13 August, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2500 of 2009()


1. RADHA .S, T.C39/1721
                      ...  Petitioner

                        Vs



1. K.SATHEENDRAN NAIR,
                       ...       Respondent

2. STATE OF KERALA REPRESENTED BY ITS

                For Petitioner  :SRI.G.P.SHINOD

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :13/08/2009

 O R D E R
                        THOMAS P JOSEPH, J
                   ----------------------------------------
                      Crl.R.P.No.2500 of 2009
                   ---------------------------------------
                Dated this 13th day of August 2009

                                  ORDER

Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2.

2. This revision is in challenge of judgment of learned Additional Sessions Judge (Fast Track No-3), Thiruvananthapuram in Criminal Appeal No.26 of 2006 confirming conviction but modifying the sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed Rs.45000/- from him on 17-05-2000 and issued Ext.P1, cheque dated 22-11-2000 for repayment of that amount. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Respondent No.1 claimed that statutory notice was issued and served on petitioner and in proof produced Exts.P4 to P6. According to the petitioner, she had no transaction with respondent No.1 and Ext.P1 may be the blank cheque she had given to one Muraleedharan. She also contended that there was no proper service of notice on her.

3. So far as due execution of the cheque is concerned, there is the evidence of respondent No.1 as PW1. He stated about the transaction leading to the execution of the cheque. So far as Crl.R.P.No.2500 of 2009 2 contention raised by petitioner is concerned, she was not even sure whether Ext.P1 is the cheque she had allegedly given to Muraleedharan. She only raised a suspicion. At any rate there is no evidence or circumstance to prove or probabilise that contention. Courts below were not impressed by the contention raised by petitioner. I find no reason to differ.

4. So far as service of notice on petitioner is concerned, Ext.P6 is the acknowledgment card. It is true that petitioner denied signing Ext.P6. But, she has not taken steps to show that Ext.P6 did not contain her signature. She did not summon the postman who is seen to have delivered the registered notice to her, the addressee. There is no dispute regarding correctness of the address given on Exts.P4 and P6. Section 27 of the General Clauses Act provides a presumption regarding service of notice issued in the correct address by registered post. That presumption is not rebutted.

5. Though initially learned counsel had expressed a doubt whether the complaint was filed within the time, learned counsel after going through the copy of complaint submitted that complaint was preferred within time. On going through the judgment under challenge and hearing learned counsel, I find no reason to interfere with the conviction of petitioner.

6. Sentence on petitioner is to undergo simple imprisonment till rising of the court. There is also direction for payment of compensation of Rs.45000/- to respondent No.1 and default sentence Crl.R.P.No.2500 of 2009 3 of simple imprisonment for three months. Having regard to the nature of the offence and the amount involved there is no reason to interfere with the substantive sentence, direction for payment of compensation or default sentence at the instance of petitioner.

7. Learned counsel has requested that petitioner may be granted four months' time to deposit the compensation. Learned counsel states that petitioner is unable to raise the entire amount immediately. There is also a request that petitioner may be permitted to pay compensation directly to respondent No.1. Having regard to the circumstances stated, I am inclined to allow that request.

Resultantly, this revision petition fails. It is dismissed. Petitioner is granted time till 13-12-2009 to deposit compensation in the trial court. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.1 through her counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the amount within the period aforesaid. petitioner shall appear in the trial court on 16-12-2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 16-12-2009.

THOMAS P JOSEPH, JUDGE Sbna/