Partly allowed

Shyam Sundaer v. M.Basheer

Kerala HC24 Sept 2007Crl.Rev.Pet/1063/2005

Case brief

AI extract

What is this about?

High Court of Kerala dismissed an order confirming conviction for cheque dishonour but modified the sentence. Conviction under Section 138 NI Act upheld. Defendant to pay Rs. 75,000 compensation to respondent; imprisonment till rising if paid, or three months simple imprisonment if default.

What did the court decide?

Conviction confirmed; sentence modified to imprisonment suspended contingent upon payment of Rs. 75,000 compensation; default sentence three months simple imprisonment.

Shyam Sundaer Vs M.Basheer — Cheque Dishonour | Kerala HC (2007)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE V.RAMKUMAR

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MONDAY, THE 24TH SEPTEMBER 2007 / 2ND ASWINA 1929

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Crl.Rev.Pet.No. 1063 of 2005()

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CRL. APPEAL NO. 249/1999 of SESSIONS COURT, THALASSERY C.C. NO. 410/1997 OF JFCM, THALASSERY

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REVN. PETITIONER: APPELLANT/ACCUSED

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M.SHYAM SUNDER S/O. KARUNAKARAN MUNDAYADAN HOUSE, NEAR GIRLS HIGH SCHOOL, KAYYATH ROAD, THALASSERY, KANNUR DISTRICT.

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BY ADV. SRI.P.NARAYANAN

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RESPONDENTS: RESPONDENT/COMPLAINANT

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M.BASHEER, S/O. MUHAMMED ZAREENA'S, T.C.ROAD, P.O.THALASSERY, KANNUR DISTRICT.

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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BY ADV. SRI.M.V.AMARESA

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SRI. K.S. SIVAKUMAR, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/09/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL. R.P. NO. 1063/2005

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: 2 :

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ORDER ON CRL. M.A. NO. 5326/2005 IN CRL. R.P. NO. 1063/2005

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DISMISSED

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24.09.2007

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SD/- V. RAMKUMAR, JUDGE.

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V.RAMKUMAR, J.

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.................................................

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Crl.R.P. No. 1063 of 2005

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................................................ Dated this the 24^th day of September, 2007

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O R D E R

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In this Revision filed under Section 397 read with Sec. 401 Cr.P.C. the petitioner who was the accused in C.C.No. 410 of 1997 on the file of the J.F.C.M, Thalassery 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').

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I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor.

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The learned counsel appearing for the Revision Petitioner reiterated 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. 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.

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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,

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CRL. R.P. NO. 1063/2005 : 2 :

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inclined to modify the sentence imposed on the revision petitioner. Accordingly, if the revision petitioner pays to the first respondent complainant by way of compensation under Sec. 357 (3) Cr.P.C. a sum of Rs. 75,000/- (Rupees Seventy Five thousand only) within five months from today, then he need to undergo only imprisonment till the rising of the court. If the revision petitioner commits default in making the payment as aforesaid, he shall undergo simple imprisonment for three months by way of default sentence.

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Amount, if any, paid by the revision petitioner pursuant to the orders, passed by the lower appellate court shall be refunded to the petitioner.

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This Revision is disposed of confirming the conviction but modifying the sentence as above.

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V. RAMKUMAR, JUDGE.

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Shyam Sundaer v. M.Basheer

Case brief

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Shyam Sundaer v. M.Basheer

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