IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 4444 of 2006()
1. A.T.NOUSHAD, S/O.N.P.ABOOTTY,
... Petitioner
Vs
1. KARUNAKARAN, MOULAVI AGENCIES,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.T.M.ABDUL LATHEEF
For Respondent :SRI.C.P.PEETHAMBARAN
The Hon'ble MR. Justice V.RAMKUMAR
Dated :23/10/2007
O R D E R
V.RAMKUMAR, J.
=========================
Crl.R.P. No. 4444 OF 2006
==========================
Dated this the 23rd day of October, 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.892 of 2001 on
the file of the Addl. Chief Judicial Magistrate, Thalassery 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 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 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 Petitioner/accused failed to make the payment
within 15 days of receipt of the statutory notice.
4. The learned counsel for the revision petitioner made the
following further submissions before me:-
Ext.D1 series of order forms will clearly show that the liability
under Ext.P1 cheque does not subsist. The specific case of the revision
petitioner has been that the cheque in question was not entrusted with
the complainant but with DW2 and there is no liability for the accused
CRL.R.P. NO. 4444/2006 : 2:
towards the complainant examined as PW1. Exts. D2 and D3 post
cards will show that Ext.D4 notice was preceded by two other notice
and if time is reckoned from Ext.D3 post card, the complaint filed was
hopelessly time barred.
5. Both the courts below have considered the above contentions
and have rejected the same. Ext.D1 series of order forms have not
been shown to pertain to the transaction in question. DW2 with whom
the cheque in question was allegedly entrusted did not support the
defence. If the cheque was really entrusted with DW2 as alleged by
the accused, it has not been shown as to how the cheque came into
the hands of the complainant particularly when DW2 does not have a
case that the accused had entrusted the cheque with him while
availing a loan which is alleged to have been discharged also.
6. As for the contentions based on Exts.D2 and D3 post cards
the first of them only show that the complainant is going to present
the cheque before the drawee bank. The second post card only states
that the bank has dishonoured the cheque and the complainant will be
initiating proper legal steps. Both these post cards do not amount to
notice as contemplated under Section 138 of the Negotiable
Instruments Act. Moreover, there is no demand of the cheque amount
as well. As against this Ext.P4 notice conforms to the requirements of
Section 138 of the Act and that alone can be reckoned as the valid
statutory notice. The complainant was well within the period of
Limitation.
7. 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
CRL.R.P. NO. 4444/2006 : 3:
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.
8. What now survives for consideration is the question as to
whether a proper sentence has been imposed on the Revision
Petitioner. Having regard to the facts and circumstances of the case, 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.
The sentence imposed on the revision petitioner is set aside and
instead he is sentenced to pay fine of Rs.25,000/-(Rupees twenty five
thousand only) which shall be deposited within two months from today
and on default to make the payment, he shall suffer simple
imprisonment for three months. The fine amount shall be paid as
compensation to the complainant under Section 357(1) Cr.P.C.
This Revision is disposed of confirming the conviction but
modifying the sentence as above.
V. RAMKUMAR, JUDGE.
rv