IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3845 of 2007()
1. V.B.RAMESAN,S/O. LATE V.K.BALAKRISHNAN
... Petitioner
Vs
1. G.KARTHIKEYAN,S/O. S.GANESAN,
... Respondent
2. STATE OF KERALA REPRESENTED
For Petitioner :SRI.K.R.RAJKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :16/11/2007
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. No. 3845 OF 2007 A
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Dated this the 16th day of November, 2007
O R D E R
In this revision filed under Section 397 read with
Section 401 Cr.P.C. the petitioner who was the accused in C.C.
No.590/2004 on the file of the Additional CJM(EO), Ernakulam
challenges the conviction entered and the sentence passed
against him for an offence punishable under Section 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 revision 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
Crl.R.P.No.3845/07
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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 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. 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. Accordingly, the sentence imposed
by the courts below on the revision petitioner is set aside and
instead he is sentenced to pay a fine of Rs.40,000/- (Rupees forty
thousand only) [giving credit to the sum of Rs.10,000/-(Rupees ten
thousand only) deposited by the revision petitioner before the trial
court pursuant to the orders of the first appellate court and which
amount shall be permitted to be withdrawn by the 1st respondent
complainant] within five months from today, failing which he shall
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suffer simple imprisonment for three months by way of default
sentence. As and when the fine amount is deposited, the same
shall be paid to the 1st respondent complainant by way of
compensation under Section 357(1) Cr.P.C.
This revision is disposed of confirming the conviction but
modifying the sentence as above.
(V. RAMKUMAR, JUDGE)
aks