Partly allowed

Sunitha v. Gopalakrishnan Nair & Another

Kerala HC10 Jun 2008Crl.Rev.Pet/1882/2008

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal revision petition challenging the conviction for cheque dishonour. Confirms the conviction but modifies the sentence to a fine payable as compensation, prohibiting default imprisonment for non-payment, citing Supreme Court precedent.

What did the court decide?

Conviction confirmed; sentence modified to Rs. 2,60,000 fine payable as compensation within seven months, else simple imprisonment for three months for default.

Sunitha Vs Gopalakrishnan Nair & Another — 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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TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930

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Crl.Rev.Pet.No. 1882 of 2008()

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CRA.100/2006 of II ADDL.SESSIONS COURT, KOLLAM CC.742/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM

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REVISION PETITIONER/APPELLANT/ACCUSED

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-------------------------------------------------------------------

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SUNITHA, W/O.MOHANAN, VDAKKEKARA VEEDU, CHANGARUMTHODU, EZHUPUNNA SOUTH.P.O, CHERTHALA, ALAPPUZHA DIST.

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BY ADV. SRI.JOHN JUDE ISSAC

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RESPONDENTS:/ RESPONDENTS/RESPONDENTS

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1. GOPALAKRISHNAN NAIR, CHETHANA, LIONS NAGAR, MUNDACKAL WEST, KOLLAM.

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2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.C.M.NAZAR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V. RAMKUMAR, J.

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- - - - - - - - - - - - - - - - - CRL.R.P. No.1882 of 2008

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- - - - - - - - - - - - - - - -

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Dated this the 10th 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

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Section 401 Cr.P.C. the petitioner who was the accused in C.C.No.742/2002 on the file of the JFCM I, Kollam 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.

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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 1882 OF 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

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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 3-8-2007 in Crl. Appeal 1013 of 2007 , default sentence cannot be imposed for the enforcement of an order for

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CRRP 1882 OF 2008 -:3:-

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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.2,60,000/-(Rupees Two lakhs sixty 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 seven 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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V. RAMKUMAR, JUDGE

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Sunitha v. Gopalakrishnan Nair & Another

Case brief

What is this about?

What did the court decide?

Sunitha v. Gopalakrishnan Nair & Another

Case brief

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