IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 4557 of 2006()
1. K.P.POULOSE, AGED 55,
... Petitioner
Vs
1. A.K.ELSON, AYYAMBILLY VEEDU,
... Respondent
2. STATE OF KERALA, REP. BY PUBLIC
For Petitioner :SRI.V.RAJENDRAN (PERUMBAVOOR)
For Respondent :SRI.BIJU .C. ABRAHAM
The Hon'ble MR. Justice V.RAMKUMAR
Dated :02/07/2007
O R D E R
V. RAMKUMAR, J.
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Crl.R.P. No. 4557 OF 2006
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Dated this the 2nd day of July, 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.974/2001 on the
file of the J.F.C.M., Perumbavoor 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 counsel for the first respondent.
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
appellant 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. Both the courts have considered and rejected
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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.
4. What now survives for consideration is the question as to
whether a proper sentence has been imposed on the Revision
Petitioner.
5. I am, however, inclined to modify the sentence imposed on
the revision petitioner provided he complies with the condition
hereinafter mentioned. Accordingly, the revision petitioner is directed to
pay a sum of Rs.1,50,000/- (Rupees one lakh and fifty thousand only) to
the 1st respondent complainant by way of compensation under section
357(3) Cr.P.C. A sum of Rs.45,000/- was already paid when the matter
was pending in the lower appellate court. Pursuant to interim orders
passed by this court, the counsel for the revision petitioner submits that
a sum of Rs.75,000/- has been paid. If so, what remains is only
Rs.30,000/- for which he prayed for two months time. Eventhough the
learned counsel for the 1st respondent opposed the prayer, I am inclined
to grant the said request. Accordingly, if the revision petitioner pays or
deposits before the trial court the balance amount of Rs.30,000/- for
payment to the 1st respondent complainant within two months from
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today, he need only undergo imprisonment till rising of the court. If on
the other hand, the revision petitioner commits default in making the
payment as aforesaid, he shall suffer simple imprisonment for three
months by way of default. The 1st respondent shall be entitled to
withdraw the amounts already deposited.
This Revision is disposed of as above.
(V. RAMKUMAR, JUDGE)
aks