High Court Kerala High Court

Babu Surendranath vs Athmadasan on 21 December, 2010

Kerala High Court
Babu Surendranath vs Athmadasan on 21 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3390 of 2003()



1. BABU SURENDRANATH
                      ...  Petitioner

                        Vs

1. ATHMADASAN
                       ...       Respondent

                For Petitioner  :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)

                For Respondent  :SRI.K.HARILAL

The Hon'ble MR. Justice M.L.JOSEPH FRANCIS

 Dated :21/12/2010

 O R D E R
                 M.L. JOSEPH FRANCIS, J.
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                 Crl.R.P.No. 3390 of 2003
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           Dated this the 21st day of December, 2010

                              O R D E R

This Crl.R.P. is filed by the accused in S.T.No. 1051 of

1995 on the file of the Judicial First Class Magistrate,

Kayamkulam. The cheque amount was Rs.25,000/- In the trial

court the accused was convicted under Section 138 of the N.I. Act

and sentenced to undergo rigorous imprisonment for three

months and to pay a fine of Rs.50,000/-, in default to undergo

S.I. for one month. The appeal filed by the accused as Crl.A.No.

162 of 1998 before the Additional Sessions Court – II,

Mavelikkara was dismissed. Against that conviction and

sentence the accused filed this revision petition.

2. Heard learned counsel for the revision petitioner,

learned counsel for the complainant and the learned Public

Prosecutor.

Crl.R.P.No. 3390 of 2003

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3. The learned counsel appearing for the revision petitioner

reiterated the same contentions 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.

Crl.R.P.No. 3390 of 2003

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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 view that sentencing the

accused to pay a fine of Rs.25,000/- 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.

Crl.R.P.No. 3390 of 2003

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6. Accordingly this Revision Petition is disposed of

confirming the conviction entered and by modifying the sentence

imposed on the revision petitioner.

(M.L. JOSEPH FRANCIS)
Judge
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