High Court Kerala High Court

S. Majitha vs K. Omana on 19 October, 2007

Kerala High Court
S. Majitha vs K. Omana on 19 October, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 3754 of 2007()


1. S. MAJITHA,
                      ...  Petitioner

                        Vs



1. K. OMANA,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :19/10/2007

 O R D E R
                         V.RAMKUMAR, J.
               =========================
                      Crl.R.P. No. 3754 of 2007
              ==========================
              Dated this the 19th day of October, 2007

                               O R D E R

In this Revision filed under Section 397 read with Sec. 401

Cr.P.C. the petitioner who was the accused in C.C. No.1047 of 2000 on

the file of the J.F.C.M, Mavelikkara challenges the conviction entered

and the sentence passed against him for an offence punishable under

Sec. 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 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.

4. The learned counsel for the revision petitioner made the

following further submission before me:-

The specific case of the revision petitioner during examination

under Section 313 Cr.P.C was that she is not the holder of the account

from which Ext.P1 cheque was issued. DW1, the Manager of the

drawee bank has deposed that even though the account in question

pertains to S. Majitha which is the name of the accused, the address

CRL. R.P. NO. 3754/2007

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shown in the account is different. So the complainant has not

discharged the initial burden of proving that the cheque was issued

from the account maintained by the accused. Hence, the prosecution

of the accused for the aforesaid offence was bad.

5. I am afraid I cannot agree with the above submission. First of

all, the accused did not send a reply to the statutory notice issued to

her. No doubt, PW1, the Manager had deposed that the address

shown in the account is different from the address shown for the

accused, though the names are the same. It was not even put to PW1

during her cross examination that the cheque in question does not

relate to the account maintained by the accused or that it does not

contain the signature of the accused. When the accused had no reply

to the statutory notice and had no suggestion to be put to PW1 that

she is not the account holder and that the signature in the Ext.P1 is

not that of hers, it was too late in the day for her to come out with

such a contention.

6. 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 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.

7. What now survives for consideration is the question as to

whether a proper sentence has been imposed on the Revision

Petitioner. Having regard to the facts and circumstances of the case, 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.

CRL. R.P. NO. 3754/2007

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The sentence imposed on the revision petitioner is set aside and

instead he is sentenced to pay fine of Rs.55,000/-(Rupees fifty five

thousand only) and on default to make the payment, he shall suffer

simple imprisonment for three months. Out of the fine amount, the

cheque amount of Rs.50,000/-(Rupees fifty thousand only) shall be

paid a compensation under Section 357(1) Cr.P.C. Fine amount shall

be deposited within four months from today.

This Revision is disposed of confirming the conviction but

modifying the sentence as above.

V. RAMKUMAR, JUDGE.

rv