P.I. Gigi vs State on 2 November, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 669 of 2001()



1. P.I. GIGI
                      ...  Petitioner

                        Vs

1. STATE
                       ...       Respondent

                For Petitioner  :SRI.JESWIN P.VARGHESE

                For Respondent  :SRI.S.KRISHNAKUMAR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :02/11/2007

 O R D E R
                              V. RAMKUMAR, J.
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                        Crl. R.P. No. 669 OF 2001 A
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                Dated this the 2nd 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.919/1995 on

the file of the Addl. CJM, 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 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.669/01
: 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 he is sentenced to pay a fine of

Rs.35,000/- (Rupees thirty five thousand only) [giving credit to the sum

of Rs.15,000/- (Rupees fifteen thousand only) deposited by the revision

petitioner before the trial court pursuant to the interim orders of the court

and which amount shall be allowed to be withdrawn by the 2nd

respondent complainant] within three months from today, failing which

he 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.

This revision is disposed of confirming the conviction but

modifying the sentence as above.

(V. RAMKUMAR, JUDGE)
aks

Crl.R.P.No.669/01
: 3 :

V. RAMKUMAR, J.

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Crl. R.P. No. 669 OF 2001 A
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O R D E R

2nd day of November, 2007