IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1209 of 2001()
1. P.K.MONY
... Petitioner
Vs
1. BIJU MATHEW
... Respondent
For Petitioner :SRI.R.BINDU (SASTHAMANGALAM)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :25/11/2010
O R D E R
M. L. JOSEPH FRANCIS, J.
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Crl.R.P. No:1209 of 2001
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Dated this the 25th day of November 2010
O R D E R
This Revision petition is filed by the accused in C.C. No. 569 of
1995 on the file of Judicial First Class Magistrate Court – I, Muvattupuzha
challenging the conviction and sentence passed against him for the
offence punishable under Section 138 of N.I. Act. The cheque amount
was Rs.40,000/-. In the Trial Court, the accused was convicted and
sentenced to undergo simple imprisonment for one year and to pay a fine
of Rs.50,000/-. In the appeal the sentence was modified as simple
imprisonment for a period of three months and to pay a fine of Rs.5,000/-,
in default to undergo simple imprisonment for a period of one month. If
the fine amount is realised a sum of Rs.4,000/- to be paid to the
complainant as compensation.
2. I heard the learned counsel for the revision petitioner, learned
counsel for the complainant and the public prosecutor.
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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.
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
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priority over the punitive aspect. Considering the facts and circumstances
of the case, I am of the view that sentencing the accused to pay a fine of
Rs.40,000/- 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
( Judge)
jvt