Partly allowed

Jayantha a.Udyavar v. Felix Vegus

Kerala HC25 Jun 2008Crl.Rev.Pet/1302/2008

Case brief

AI extract

What is this about?

The High Court of Kerala, in this criminal revision, confirmed the conviction of the petitioner under the Negotiable Instruments Act for cheque dishonour. While finding no error in the lower courts' factual findings, the Judge modified the sentence, imposing a fine payable as compensation instead of imprisonment, referencing a recent Supreme Court decision.

What did the court decide?

Revocation of order of default sentence. Petitioner sentenced to a fine of Rs. 85,000 as compensation under Section 357(1) CrPC. Failure to pay within six months results in three months simple impriso

Jayantha a.Udyavar Vs Felix Vegus — Company and Corporate | 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 25TH JUNE 2008 / 4TH ASHADHA 1930

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Crl.Rev.Pet.No. 1302 of 2008(C)

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-----------------------------CRA.178/2006 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD CC.190/2005 of JUDICIAL FIRST CLASS MAGISTRATE-II, KASARAGOD

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REVN. PETITIONER: APPELLANT/ACCUSED

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JAYANTHA A.UDYAVAR,

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AGED 65 YEARS, S/O.APPU @ AMBU, R/AT AJANTHA NIVAS, KUNJATHUR VILLAGE & POST, KASARAGOD TALUK.

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BY ADV. SRI.M.RAMESH CHANDER

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SMT. SIJI ANTONY

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RESPONDENTS: COMPLAINANT AND STATE

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FELIX VEGUS, AGED 53 YEARS, S/O.KAWRABCE VEGUS, RESIDING AT SUKKADAMAJAL HOUSE, VORKADY VILLAGE & POST, KASARAGOD TALUK & DISTRICT.

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

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R1 BY ADV. SRI.T.G.RAJENDRAN

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SRI. C.M. NAZER, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.R.P.NO. 1302/2008

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: 2 :

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ORDER ON Crl.M.A. NO.3823/2008 IN CRL.R.P.NO. 1302/2008

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DISMISSED

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sd/- V. RAMKUMAR, JUDGE.

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25.06.2008

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V.RAMKUMAR, J.

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====================== Crl.R.P. No. 1302 of 2008 ======================= Dated, this the 25^th day of June,2008.

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O R D E R

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In this Revision petition filed under Section 397 read with Section 401 Cr.P.C. the petitioner who was the accused in C.C. No. 190 of 2005 on the file of the Judicial First Class Magistrate -II, Kasaragod challenges the conviction entered and the sentence passed against him for an offence punishable under Section 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 and also the learned counsel for the complainant.

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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

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CRL.R.P. NO.1302/2008 -:2:-

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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 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 (2008(1) KLT 851) rendered on 3-82007 in Crl. Appeal 1013 of 2007 , default sentence cannot be

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CRL.R.P. NO.1302/2008 -:3:-

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imposed for the enforcement of an order for compensation under Section 357 (3) Cr.P.C. Accordingly, for the conviction under Section 138 of the Act the revision petitioner is sentenced to pay a fine of Rs.85,000/- (Rupees eighty five thousand 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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Dated, this the 25^th day of June,2008.

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V. RAMKUMAR, JUDGE.

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Jayantha a.Udyavar v. Felix Vegus

Case brief

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Jayantha a.Udyavar v. Felix Vegus

Case brief

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