High Court Kerala High Court

Smt.Hajira vs M/S.Classic Agencies on 23 May, 2008

Kerala High Court
Smt.Hajira vs M/S.Classic Agencies on 23 May, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 932 of 2008()


1. SMT.HAJIRA, W/O.ABDURAHIMAN HAJI, AGED
                      ...  Petitioner

                        Vs



1. M/S.CLASSIC AGENCIES, 14/12F, SOUTHERN
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.M.A.SHAFIK

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :23/05/2008

 O R D E R
                         V. RAMKUMAR, J.
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                    CRL.R.P. No.932 of 2008
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             Dated this the 23rd day of May 2008

                              O R D E R

In this Revision petition filed under Section 397 read with

Section 401 Cr.P.C. the petitioner who was the accused in S.T.

No.1054/2005 on the file of the Special Judicial First Class

Magistrate(Maradu Cases) Court,Kozhikode challenges the

conviction entered and the sentence passed against her for an

offence punishable under Section 142 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 and also the learned counsel

for the complainant.

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

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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 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 what should be the proper sentence to be imposed

on the revision petitioner. Having regard to the facts and

circumstances of the case, I am inclined to modify the sentence

imposed on the revision petitioner. In the light of the recent

decision of the Supreme Court in Ettappadan Ahammedkutty

v. E.P. Abdullakoya (2008(1) KLT 851) rendered on

3-8-2007 in Crl. Appeal 1013 of 2007, default sentence

cannot be imposed for the enforcement of an order for

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compensation under Section 357 (3) Cr.P.C. Accordingly, for the

conviction under Section 138 of the Act the revision petitioner is

sentenced to pay a fine of Rs.32,000/- (after giving credit to the

sum of Rs.8,500/- deposited by the petitioner before the trial

court and which amount shall be permitted to be withdrawn by

the first respondent/complainant). The said fine shall be paid as

compensation under Section 357 (1) 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 two months from today and produce a memo

to that effect before the trial Court in case of direct payment. If

she fails to deposit or pay the said amount within the

aforementioned period, she shall suffer simple imprisonment for

three months by way of default sentence.

In the result, this Revision is disposed of confirming the

conviction entered but modifying the sentence imposed on the

revision petitioner.

V. RAMKUMAR, JUDGE

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