IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3494 of 2007()
1. XAVIER THOMAS,
... Petitioner
Vs
1. ROY T. THARIAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.P.CHANDY JOSEPH
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :27/09/2007
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. No. 3494 OF 2007
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Dated this the 27th day of September, 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.1056/2004 on the file of the J.F.C.M.-II(Mobile), Kottayam
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 revision 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
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: 2 :
(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 a proper sentence has been imposed on the Revision
Petitioner. I am, however, inclined to modify the sentence
imposed on the revision petitioner provided he complies with the
condition hereinafter mentioned. Accordingly, if the revision
petitioner pays to the 1st respondent complainant by way of
compensation under section 357(3) Cr.P.C. a sum of
Rs.1,40,000/- (Rupees one lakh and forty thousand only) within
five months from today, then he need to undergo only
imprisonment till the rising of the court. If on the other hand, the
revision petitioner commits default in making the payment as
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aforesaid, he shall undergo simple imprisonment for three months
by way of default sentence. Money, if any, paid by the revision
petitioner pursuant to the orders, if any, passed by the lower
appellate court shall be refunded to the revision petitioner. The
petitioner shall be released from prison forthwith with liability to
pay the sum of Rs.1,40,000/- (Rupees one lakh and forty thousand
only) within five months from today, failing which he shall undergo
the default sentence unless his continued detention is found
necessary in connection with any other case against him.
This Revision is disposed of confirming the conviction but
modifying the sentence as above.
(V. RAMKUMAR, JUDGE)
aks