IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1994 of 2003()
1. JABBAR.K.
... Petitioner
Vs
1. THOMAS PAUL
... Respondent
For Petitioner :SRI.RENJITH THAMPAN
For Respondent :SRI.WILSON URMESE
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :10/12/2010
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.R.P.No. 1994 of 2003
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Dated this the 10th day of December, 2010
O R D E R
This Revision petition is filed by the accused in C.C.
No. 964 of 1998 on the file of the J.F.C.M. Court – II, Alwaye
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 S.I. for a
period of five months. The appeal filed against that
conviction and sentence was dismissed.
2. Heard learned counsel for the revision petitioner,
learned counsel for the complainant and the learned Public
Prosecutor.
3. The learned counsel appearing for the revision
petitioner reiterated the same contention raised before the
Crl.R.P.No. 1994 of 2003
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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.
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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.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.
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6. In the result, 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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