Partly allowed

Rajagopalan v. K.D.Varghese John

Kerala HC2 Apr 2008Crl.Rev.Pet/1139/2008

Case brief

AI extract

What is this about?

High Court of Kerala confirmed conviction under Section 138 of the Negotiable Instruments Act but modified sentence from default imprisonment to a fine of Rs. 2,00,000 payable as compensation, applicable if not paid within six months.

What did the court decide?

petitioner sentenced to pay fine of Rs. 2,00,000 as compensation; failure to pay results in three months simple imprisonment; conviction confirmed.

Rajagopalan Vs K.D.Varghese John — Cheque Dishonour | Kerala HC (2008)

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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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WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930

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Crl.Rev.Pet.No. 1139 of 2008

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-----------------------------CRA.109/2002 of ADDL.DISTRICT & SESSIONS JUDGE(ADHOC-III)KOLLAM CC.480/1997 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVOOR

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REVN. PETITIONER: REVISION PETITIONER/APPELLANT/ACCUSED

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RAJAGOPALAN, PROPRIETOR, B.S.S.TEXTILES CO., KRISHNA VIHAR NO.10 VIGA STREET, CAUVERY NAGAR, K.K.PUDAR, COIMBATORE- 641 038.

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BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL

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RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE

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K.D.VARGHESE JOHN, MANAGING DIRECTOR, QUILION CO-OPERATIVE SPINNING MILLS LTD, KARAMCODE, CHATHANNORE.

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

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BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR

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SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 2-4-2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.RAMKUMAR, J.

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................................................. Crl.R.P. No. 1139 of 2008

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................................................ Dated this the 2^nd day of April , 2008

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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.480 of 1997 on the file of the Court of Judicial First Class Magistrate, Paravur, 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

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and the learned Public Prosecutor.

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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 fall under Section 138 of the Act, that the complainant made a

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CRRP 1139/2008 -2-

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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 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 rendered on 3-8-2007 in Crl.Appeal 1013 of 2007 , default sentence cannot be imposed for the enforcement of an order for compensation under Sec. 357 (3) Cr.P.C. Accordingly, for the conviction under

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CRRP 1139/2008

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-3-

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Section 138 of the Act the revision petitioner is sentenced to pay a fine of Rs.2,00,000/- (Rupees two lakhs only). 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 six months from today and 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 aforementioned period he shall suffer simple imprisonment for three months by way of default sentence.

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In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner.

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Sd/-

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V. RAMKUMAR, JUDGE.

TRUE COPY

P.S.TO JUDGE

CRRP 1139/2008 -4-

Rajagopalan v. K.D.Varghese John

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Rajagopalan v. K.D.Varghese John

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