IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3754 of 2007()
1. S. MAJITHA,
... Petitioner
Vs
1. K. OMANA,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :19/10/2007
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 3754 of 2007
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Dated this the 19th day of October, 2007
O R D E R
In this Revision filed under Section 397 read with Sec. 401
Cr.P.C. the petitioner who was the accused in C.C. No.1047 of 2000 on
the file of the J.F.C.M, Mavelikkara challenges the conviction entered
and the sentence passed against him for an offence punishable under
Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred
to as ‘the Act’).
2. I heard the learned counsel for the Revision Petitioner and
the learned Public Prosecutor.
3. The learned counsel appearing for the Revision Petitioner
re-iterated the contentions in support of the Revision. The courts
below have concurrently held that the cheque in question was drawn
by the petitioner in favour of the complainant on the drawee bank,
that the cheque was validly presented to the bank, that it was
dishonoured for reasons which fall under Section 138 of the Act, that
the complainant made a demand for payment by a notice in time in
accordance with clause (b) of the proviso to Section 138 of the Act
and that the Revision Petitioner/accused failed to make the payment
within 15 days of receipt of the statutory notice.
4. The learned counsel for the revision petitioner made the
following further submission before me:-
The specific case of the revision petitioner during examination
under Section 313 Cr.P.C was that she is not the holder of the account
from which Ext.P1 cheque was issued. DW1, the Manager of the
drawee bank has deposed that even though the account in question
pertains to S. Majitha which is the name of the accused, the address
CRL. R.P. NO. 3754/2007
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shown in the account is different. So the complainant has not
discharged the initial burden of proving that the cheque was issued
from the account maintained by the accused. Hence, the prosecution
of the accused for the aforesaid offence was bad.
5. I am afraid I cannot agree with the above submission. First of
all, the accused did not send a reply to the statutory notice issued to
her. No doubt, PW1, the Manager had deposed that the address
shown in the account is different from the address shown for the
accused, though the names are the same. It was not even put to PW1
during her cross examination that the cheque in question does not
relate to the account maintained by the accused or that it does not
contain the signature of the accused. When the accused had no reply
to the statutory notice and had no suggestion to be put to PW1 that
she is not the account holder and that the signature in the Ext.P1 is
not that of hers, it was too late in the day for her to come out with
such a contention.
6. Both the courts have considered and rejected the defence
set up by the revision petitioner while entering the above finding.
The said finding has been recorded on an appreciation of the oral and
documentary evidence. I do not find any error, illegality or
impropriety in the finding so recorded concurrently by the courts
below. The conviction was thus rightly entered against the petitioner.
7. What now survives for consideration is the question as to
whether a proper sentence has been imposed on the Revision
Petitioner. Having regard to the facts and circumstances of the case, I
am, however, inclined to modify the sentence in the light of the recent
pronouncement by the Supreme Court that no default sentence can be
imposed for an order for compensation under Section 357(3) Cr.P.C.
CRL. R.P. NO. 3754/2007
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The sentence imposed on the revision petitioner is set aside and
instead he is sentenced to pay fine of Rs.55,000/-(Rupees fifty five
thousand only) and on default to make the payment, he shall suffer
simple imprisonment for three months. Out of the fine amount, the
cheque amount of Rs.50,000/-(Rupees fifty thousand only) shall be
paid a compensation under Section 357(1) Cr.P.C. Fine amount shall
be deposited within four months from today.
This Revision is disposed of confirming the conviction but
modifying the sentence as above.
V. RAMKUMAR, JUDGE.
rv