Partly allowed

K.S.Bindhu v. G.Nalini

Kerala HC25 Jun 2008Crl.Rev.Pet/760/2008

Case brief

AI extract

What is this about?

The High Court dismissed the revision petition, confirming the conviction for cheque dishonour under Section 138. However, relying on a Supreme Court precedent, the bench modified the sentence, imposing a fine in lieu of a default term of imprisonment.

What did the court decide?

Conviction confirmed; sentence modified to a fine of Rs. 50,000 payable as compensation within three months, with imprisonment in default.

K.S.Bindhu Vs G.Nalini — 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 25TH JUNE 2008 / 4TH ASHADHA 1930

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Crl.Rev.Pet.No. 760 of 2008()

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----------------------------CRA.748/2005 of I ADDL. SESSIONS COURT, KOLLAM CC.1216/2002 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR

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REVN. PETITIONER: APPELLANT IN CRA.NO.748/05

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K.S.BINDHU, W/O.JAYACHANDRAN, KARICHAYIL VADAKKETHIL HOUSE, PALLIKKAL, KOTTARAKKARA.

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BY ADV. SRI.K.V.ANIL KUMAR

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RESPONDENTS: RESPONDENT NO.1 IN CRA.748/05

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G.NALINI, W/O.SADANANDAN, REMA MANDIRAM, SIVANKOVIL ROAD, PUNALUR.

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STATE OF KERALA, REP. BY THE 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 25/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.RAMKUMAR, J.

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Crl.R.P. No.760 of 2008

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................................................ Dated this the 25th 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 Sec. 401 Cr.P.C. the petitioner, who was the accused in C.C.No.1216 of 2002 on the file of the Court of Judicial First Class Magistrate III, Punalur, challenges the conviction entered and the sentence passed against her 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

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Crl.R.P.No.760 / 2008

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-:2:-

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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), 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 Section 138 of the Act the revision petitioner is sentenced to pay a fine of Rs.50,000/-(Rupees fifty 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 three months from today and produce a memo to that effect before the trial Court in case of direct payment. If she fails to deposit or pay the said amount within the aforementioned period she 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. Dated this the 25th day of June, 2008.

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V. RAMKUMAR, JUDGE.

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Crl.R.P.No.760 / 2008 -:3:-

K.S.Bindhu v. G.Nalini

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K.S.Bindhu v. G.Nalini

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