IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1618 of 2002()
1. N.K.MOIDEEN, S/O.MUHAMMED,
... Petitioner
Vs
1. K.KHALID, S/O.MUHAMMED,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.P.M.SAJI
For Respondent :SMT.K.V.RESHMI
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :06/12/2010
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.R.P.No. 1618 of 2002
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Dated this the 6th day of December, 2010
O R D E R
This revision petition is filed by the complainant in C.C.
No. 49 of 1995 on the file of the Judicial First Class Magistrate
Court, Payyoli. The first respondent herein was the accused in
that case, which was filed by the complainant alleging
commission of the offence under Section 138 of the N.I. Act,
involving a cheque for Rs.50,000/- In the trial court, the accused
was convicted under Section 138 of the N.I. Act and he was
sentenced to pay a fine of Rs.50,500/- and in default to undergo
S.I. for six months. Out of the fine amount, Rs.50,000/- shall be
given to the complainant as compensation. In appeal, the
sentence was modified and the accused was sentenced to pay a
fine of Rs.5,000/- and in default to undergo S.I. for one month
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and if the fine amount is realised, it will be paid to the complainant as
compensation under section 357(1) Cr.P.C.
2. Heard learned counsel for the revision petitioner and the
learned counsel for the first respondent.
3. The revision petitioner is not challenging the conviction of the
accused under Section 138 of the N.I. Act. The courts below have
concurrently held that the cheque in question was drawn by the
accused in favour of the complainant and that it was dishonoured
and the complainant had validly complied with clauses (a) and (b)
of the proviso to Section 138 of the N.I. Act and that the first
respondent/accused failed to make the payment within 15 days
of receipt of the statutory notice. Both the courts have considered
and rejected the defence set up by the accused while entering
the conviction. The said conviction has been recorded after a
careful evaluation of the oral and documentary evidence.
I do not find any error, illegality or impropriety in the conviction so
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recorded concurrently by the courts below and the same is hereby
confirmed.
4. The lower appellate court reduced the sentence of fine as
Rs.5,000/- as the Judicial Magistrate of the First Class is
competentonly to impose a maximum fine of Rs.5,000/- Section
143 of the N.I. Act, which was inserted by Act 55 of 2002, makes
it clear that the Judicial First Class Magistrate is competent to
impose fine exceeding Rs.5,000/-
5. The learned counsel for the revision petitioner submitted
that the learned appellate Court while sentencing the accused to pay
a fine of Rs.5,000/- ought to have ordered the accused to pay
compensation equivalent to the cheque amount to the complainant.
6. When the accused was questioned under Section 313
Cr.P.C. he stated that out of the cheque amount, he has discharged
Rs.20,000/- Considering the facts and circumstances of the case, I
Crl.R.P.No. 1618 of 2002
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am of the view that sentencing the accused to pay a fine of
Rs.30,000/- would meet the ends of justice. The said fine shall be
paid as compensation under Section 357(1) of Cr.P.C. The accused
is permitted either to deposit the said fine amount before the Court
below or directly pay the compensation to the complainant within
three months from today and to produce a memo to that effect
before the Trial Court in case of direct payment. If he fails to
deposit or pay the said amount within the aforesaid period, he shall
suffer simple imprisonment for three months by way of default
sentence. The amount if any deposited in the trial court by the
accused can be given credit to.
10 . In the result, this revision petition is disposed of as above.
(M.L. JOSEPH FRANCIS)
Judge
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