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2005 DIGILAW 638 (PNJ)

Dayawanti v. Shubh Lata

2005-05-25

S.N.AGGARWAL

body2005
Judgment S.N.AGARWAL, J. 1. The petitioner was aggrieved against the judgment passed by the Court of learned Sessions Judge, Chandigarh dated 25.5.2000 by which her appeal against her conviction and sentence under Sec.138 of the Negotiable Instruments Act was dismissed. 2. The facts of the case are that respondent Shubh Lata had filed a complaint against the present petitioner by taking the plea that she had advanced a sum of Rs.80,000/- to the petitioner. For discharging her liabilities, the petitioner had issued a cheque No. NMS/d 158406 dated 15.1.1993 drawn on New Bank of India, Burail. The said cheque was presented by the complainant (respondent herein) to her bankers i. e. Pujab state Cooperative Bank, Sector 22-C, Chandigarh for encashment but the same was returned with the remarks "insufficient funds". Then the complainant (respondent) served registered notice dated 27.5.1993 through her counsel on the petitioner calling upon her to make the payment of Rs.80,000/-within 15 days of the notice but the petitioner failed to do so making herself amenable to the criminal proceedings under Sec.138 of the Negotiable instruments Act. Hence a complaint was filed. After the preliminary evidence was produced by the respondent, the petitioner was summoned by the learned trial Court vide order dated 11.9.1993. After she appeared in the Court, the respondent produced her oral and documentary evidence. 3. In her statement recorded under Sec.313 Cr. P. C. , the petitioner denied all these allegations and took the plea that she was innocent. However, she did not lead any evidence in defence. 4. On the basis of this evidence, the learned trial Court vide judgment dated 19.10.1995 convicted the petitioner for having committed an offence punishable under Sec.138 of the Negotiable Instruments Act. She was sentenced to simple imprisonment for a period of six months besides fine amount of Rs.2,000/-. In default of payment of fine, she was to further undergo simple imprisonment for a period of one month. The fine amount was deposited by the petitioner. 5. However, the petitioner filed an appeal against the said judgment, which was dismissed by the Court of learned Additional Sessions Judge, chandigarh vide judgment dated 25.5.2000. Hence the present revision petition. 6. Submits that the legal requirement of Sec.138 of the Negotiable instruments Act was not fulfilled as no notice was served on the petitioner by the respondent. 7. This submission has however, no force. Hence the present revision petition. 6. Submits that the legal requirement of Sec.138 of the Negotiable instruments Act was not fulfilled as no notice was served on the petitioner by the respondent. 7. This submission has however, no force. Admittedly, a registered envelope was sent to the petitioner which has been proved as Exhibit C-6. It was received back with the remarks "not found. Informed". It clearly means that the notice was sent to the petitioner but she did not receive the registered cover intentionally. It is not her case that she did not reside at the given address. Moreover, the endorsement made by the postal employee clearly reveals that the addressee was informed which at the most means that the family members of the petitioner were informed. Relying upon the judgment of the Honble Madras High Court, reported as S. Parsanna V/s. Vijay Laxmi, 1992 Banking ISJ 437, the learned trial Court had come to the conclusion that the notice was clearly in the knowledge of the petitioner but she had deliberately not taken delivery of the said registered cover. The endorsement made on the registered cover was sent by the respondent to the petitioner but it was received back with the endorsement reproduced above. It only means that the petitioner had intentionally avoided to accept the registered cover. Therefore, there is no legal defect in the service of the notice. 8. I have gone through the statements of the witnesses. The present case is clearly provided against the petitioner, therefore, her conviction under section 138 of the Negotiable Instruments Act is upheld. 9. Learned counsel for the petitioner submits that the petitioner has become an old person. The alleged offence was committed by her in the year 1993. The matter remained pending in the learned trial court for about two years when she was convicted by the learned trial Court on 19.10.1995. The appeal also remained pending in the learned Lower Appellate Court for about 5 years and further revision petitioner is also pending in this Court for the last almost five years. Further submits that she has already undergone 10 days of imprisonment and she had also deposited the amount of fine. She has faced the agony for about 12 years in all. Hence leniency was prayed in the quantum of sentence. 10. I find merit in the submission of learned counsel for the petitioner. Further submits that she has already undergone 10 days of imprisonment and she had also deposited the amount of fine. She has faced the agony for about 12 years in all. Hence leniency was prayed in the quantum of sentence. 10. I find merit in the submission of learned counsel for the petitioner. It would lead to miscarriage of justice if the petitioner is now called upon to undergo the remaining part of her sentence in such an old age. Therefore, the sentence of the petitioner is reduced to the period already undergone by her. Disposed of. Petition allowed.