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Beenakumari vs The State Of Kerala on 13 November, 2007

Kerala High Court
Beenakumari vs The State Of Kerala on 13 November, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 4052 of 2007()


1. BEENAKUMARI, W/O JAYACHANDRAN,
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA,
                       ...       Respondent

2. MANOHARAN NAIR,

                For Petitioner  :SRI.R.T.PRADEEP

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :13/11/2007

 O R D E R
                              V. RAMKUMAR, J.
                  ````````````````````````````````````````````````````
                        Crl. R.P. No. 4052 OF 2007
                  ````````````````````````````````````````````````````
                Dated this the 13th 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.833/2001 on

the file of the J.F.C.M.-I, Attingal challenges the conviction entered and

the sentence passed against her 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 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

Crl.R.P.No.4052/07
: 2 :

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 she is sentenced to pay a fine of

Rs.37,000/- (Rupees thirty seven thousand only) within four months

from today, failing which she shall 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 2nd respondent complainant by

way of compensation under Section 357(1) Cr.P.C. It goes without

saying that upon payment of the aforesaid amount the petitioner can

seek appropriate adjustments in terms of section 357(5) Cr.P.C.

This revision is disposed of confirming the conviction but

modifying the sentence as above.

(V. RAMKUMAR, JUDGE)
aks

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