High Court Kerala High Court

T.R.Prabhakaran vs Davis Francis on 19 November, 2010

Kerala High Court
T.R.Prabhakaran vs Davis Francis on 19 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1191 of 2003()



1. T.R.PRABHAKARAN
                      ...  Petitioner

                        Vs

1. DAVIS FRANCIS
                       ...       Respondent

                For Petitioner  :SRI.P.VIJAYA BHANU

                For Respondent  :SRI.N.K.UNNIKRISHNAN

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

 Dated :19/11/2010

 O R D E R
               M. L. JOSEPH FRANCIS, J.
         - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                  Crl.R.P. No: 1191 of 2003
         - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

           Dated this the 19th day of November 2010

                             O R D E R

This Revision petition is filed by the accused in S.T. No.

1812 of 1999 on the file of Judicial First Class Magistrate

Court – I, Thrrisur challenging the conviction and sentence

passed against him for the offence punishable under Section

138 of N.I. Act. The cheque amount was Rs.1,00,000/-. In the

Trial Court, the accused was convicted and sentenced to

undergo simple imprisonment for three months. In the appeal

the sentence was modified as simple imprisonment for 15 days

and to pay compensation of Rs.90,000/-, in default to undergo

simple imprisonment for three months.

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

learned counsel for the complainant and the public prosecutor.

Crl.R.P. No: 1191 of 2003
:2:

3. The learned counsel appearing for the revision

petitioner reiterated the same contention raised before the 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.

Crl.R.P. No: 1191 of 2003
:3:

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.1,00,000/-

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.

Crl.R.P. No: 1191 of 2003
:4:

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/