IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 470 of 2005(C)
1. V.T. JAYALAKSHMI, W/O. THANKAVELU
... Petitioner
Vs
1. JAYATHILAKAN, S/O. KUNJUKUTTAN
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.K.A.SREEJITH
For Respondent :SRI.K.S.BABU
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :22/12/2010
O R D E R
M. L. JOSEPH FRANCIS, J.
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Crl.R.P. No: 470 of 2005
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Dated this the 22nd day of December 2010
O R D E R
This Revision petition is filed by the accused in C.C. No. 65 of 2002 on
the file of Judicial First Class Magistrate Court, Wadakkanchery challenging
the conviction and sentence passed against him for the offence punishable
under Section 138 of N.I. Act. The cheque amount was Rs.28,000/-. In the
Trial Court, the accused was sentenced to undergo simple imprisonment for
one month and also to pay an amount of Rs.29,000/- as compensation to the
complainant. In the appeal the conviction was confirmed and the sentence was
modified to undergo imprisonment till rising of court and to pay compensation
of Rs.29,000/- to the complainants in default to undergo simple imprisonment
for one month.
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
appellate court. Learned counsel for the complainant supported the
Crl.R.P. No: 470 of 2005 2
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 circumstances
of the case, I am of the view that sentencing the accused to pay a fine of
Rs.29,000/- 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 three months from
Crl.R.P. No: 470 of 2005 3
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)
pm/