MAHAR BANU Vs. N JUSTIN

JUDGEMENT

(1.) THE petitioner herein seeks to quash the proceedings in S.T.C.No.2575 of 1998 pending on the file of the Judicial Magistrate, Eraniel.

(2.) THIS Criminal Original Petition has arisen in this way: The petitioner was running a provisional store under the name and style of "Banu Stores", at Gopala Pillai Building, Monday Market, Eraniel Village. She had incurred debts with the respondent herein. She could not clear the entire debts. Therefore, on 2.7.1998, she instituted proceedings to have herself adjudicated as insolvent by filing I.P.No.3 of 1998 on the file of the Subordinate Judge, Padmanabhapuram. According to the petitioner, once when the insolvency proceedings are instituted, no other legal proceedings can be instituted against her, but the respondent preferred a complaint under Sec.138 of the Negotiable Instruments Act, alleging that she had issued a cheque on 29.7.1998, and when the cheque was presented in the bank, it was returned on 19.8.1998, regarding which a statutory notice was sent to the petitioner on 2.9.1998, and that the respondent /complainant had alleged that notice was returned unserved on 4.9.1998, and after expiry of the statutory period, the respondent preferred the complaint on 25.9.1998, which the learned Judicial Magistrate, Eraniel, had taken on file in S.T.C.No.2575 of 1998. According to the petitioner, the complaint is not maintainable after filing of the insolvency proceedings.

(3.) THE last contention of the petitioner is that the notice purported to have been sent to her on 2.9.1998 had not been received by her, but it had been returned unserved. THE petitioner contends that only with a mala fide intention, the respondent had sent the notice to her erstwhile address. Careful perusal of the typed set of papers would go to show that in her insolvency petition, the petitioner had given her address as "Mahar Banu, wife of Malik Mohamed, "..residing at Rose D Illam, Kallukottam, Lakshmipuram Village, Kalkulam Taluk, Kanniyakumari District". Though in the complaint, her address is given as Mahar Banu, W/ o. Malik Mohamed, ".residing at Rose Illam, Kallukottam Post, Lakshmipuram Village, Kalkulam Taluk, Kanniyakumari District, which address is contained in the summons issued by the learned Judicial Magistrate, the postal cover in which the summons were sent reads thus: "Mahar Banu, C/o. A.M. Rafel Contractor, Eathen Thottathu Veedu, Rajakumai, and P.O., Idukki District, Kerala State". According to the petitioner, knowing fully well that she is not residing in Kallukottam, Lakshmipuram Village, Kalkulam Taluk, Kanniyakumari District, notice was purposefully addressed to that address. Even here, it should be mentioned that the question whether or not notice had been issued to her to a wrong address, that too, with a mala fide intention has to be gone into at the time of the trial of the matter. It cannot be said that intention of parties can be assessed in the proceedings under Sec.482, Cr.P.C. I do not find any merits in the contentions of the petitioner.