IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1625 of 2003()
1. SHIHABU
... Petitioner
Vs
1. T.M.ASHRAF
... Respondent
For Petitioner :SRI.K.VINOD CHANDRAN
For Respondent :SRI.K.A.JALEEL
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :22/11/2010
O R D E R
M. L. JOSEPH FRANCIS, J.
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Crl.R.P. No: 1625 of 2003
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Dated this the 22nd day of November 2010
O R D E R
This Revision petition is filed by the accused in C.C. No.
93 of 1998 on the file of Judicial First Class Magistrate Court
-I, Aluva challenging the conviction and sentence passed
against him for the offence punishable under Section 138 of
N.I. Act. The cheque amount was Rs.2,80,000/-. In the Trial
Court, the accused was convicted and sentenced to undergo
simple imprisonment for one year and was directed to pay
Rs.2,80,000/- as compensation. The appeal against that
conviction and sentence was dismissed.
2. I heard the learned counsel for the revision petitioner,
learned counsel for the complainant and the public prosecutor.
3. The learned counsel appearing for the revision
petitioner reiterated the same contention raised before the Trial
Court and the appellate court. Learned counsel for the
complainant supported the judgment of the court below.
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4. The courts below have concurrently held that the
cheque in question was drawn by the petitioner in favour of the
complainant, that the complainant had validly complied with
clauses (a) and (b) of the proviso to Section 138 of the N.I. 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 the defence set up by
the revision petitioner 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 recorded
concurrently by the courts below and the same is hereby
confirmed.
5. In the decision reported in Damodar S. Prabhu v.
Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a
case of dishonour of cheques, compensatory aspect of the
remedy should be given priority over the punitive aspect.
Considering the facts and circumstances of the case, I am of the
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view that sentencing the accused to pay a fine of Rs.2,80,000/-
would meet the ends of justice. The said fine shall be paid as
compensation under Section 357(1) of Cr.P.C. The Revision
petitioner 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.
6. In the result, this Revision petition is disposed of
confirming the conviction entered by modifying the sentence
imposed on the revision petitioner.
M. L. JOSEPH FRANCIS
dl/ ( Judge)