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Prakasan vs Dr. Shaju Anony on 14 December, 2010

Kerala High Court
Prakasan vs Dr. Shaju Anony on 14 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 534 of 2004(B)


1. PRAKASAN S/O. NARAYANAN,
                      ...  Petitioner

                        Vs



1. DR. SHAJU ANONY S/O. ANTONY,
                       ...       Respondent

2. THE STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.S.SHANAVAS KHAN

                For Respondent  :SRI.V.M.KRISHNAKUMAR

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

 Dated :14/12/2010

 O R D E R
                 M. L. JOSEPH FRANCIS, J.
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                     Crl.R.P. No: 534 of 2004
           - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

           Dated this the 14th day of December 2010

                               O R D E R

This Revision petition is filed by the accused in C.C. No.794

of 1999 on the file of Judicial First Class Magistrate Court,

Chalakudy challenging the conviction and sentence passed against

him for the offence punishable under Section 138 of N.I. Act. The

cheque amount was Rs.1,90,000/-. In the Trial Court, the accused

was sentenced to undergo simple imprisonment for six months. In

the appeal the conviction was confirmed and sentence was modified

to undergo simple imprisonment for three months and to pay

compensation of Rs.2 lakhs, in default to undergo simple

imprisonment for two months.

2. I heard the learned counsel for the revision petitioner,

learned counsel for the complainant and the public prosecutor.

3. The learned counsel appearing for the revision petitioner

reiterated the same contention raised before the Trial Court and the

Crl.R.P. No: 534 of 2004
:2:

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.

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

Crl.R.P. No: 534 of 2004
:3:

circumstances of the case, I am of the view that sentencing the

accused to pay a fine of Rs.1,90,000/- 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 six 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.

6. In the result, this Revision petition is disposed of

confirming the conviction entered by modifying the sentence

imposed on the revision petitioner.

M. L. JOSEPH FRANCIS
( Judge)

dl/

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