Partly allowed

Hiranmayee Devi v. T.S.Sreekumaran Nair and Another

Kerala HC16 Feb 2009Crl.Rev.Pet/139/2009

Case brief

AI extract

What is this about?

The High Court confirmed the conviction of the petitioner for cheque dishonour under Section 138 of the Negotiable Instruments Act but modified the punishment by converting the default sentence to a fine of Rs. 3,00,000 payable as compensation under Section 357(1) Cr.P.C., followed by simple imprisonment for three months if the fine remains unpaid.

What did the court decide?

Conviction confirmed; sentence modified to fine of Rs. 3,00,000 payable as compensation; default imprisonment of three months for non-payment within seven months.

Hiranmayee Devi Vs T.S.Sreekumaran Nair and Another — Cheque Dishonour | Kerala HC (2009)

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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 16TH FEBRUARY 2009 / 27TH MAGHA 1930

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Crl.Rev.Pet.No. 139 of 2009()

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----------------------------CRA.311/2007 of SESSIONS COURT, TRIVANDRUM CC.38/2005 of J.F.C.M-IV, NEYYATTINKARA .................... REVN. PETITIONER(S):

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--------------------------------------HIRANMAYEE DEVI, ASWATHI BHAVAN, BHAGAVATHI NADA, VEDIVACHANKOVIL P.O., THIRUVANANTHAPURAM.

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BY ADV. SRI.T.GOPALAKRISHNAN

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RESPONDENT(S):

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------------------------1. T.S. SREEKUMARAN NAIR, S/O. THANU PILLAI, KAILAS, OLATHANNI, NEYYATTINKARA

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

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PUBLIC PROSECUTOR SRI.JAYAKRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.RAMKUMAR, J.

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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.38 of 2005 on the file of the J.F.C.M-IV, Neyyatinkara, 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'). The cheque amount was Rs.3,00,000/-(Rupees three lakhs only). The fine/compensation ordered by the lower appellate court is also Rs.3,00,000/-(Rupees three lakhs only).

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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.

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The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant, that the complainant had validly complied with clauses (a) and (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 conviction. The said conviction has been

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Crl.R..P. No. 139/09 -:2:-

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recorded after a careful evaluation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the conviction so recorded concurrently by the courts below and the same is hereby confirmed.

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What now survives for consideration is the legality of 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. I am, therefore, inclined to modify the sentence to one of fine only. Accordingly, for the conviction under Section 138 of the Act the revision petitioner is sentenced to pay a fine of Rs.3,00,000/-(Rupees three 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 seven 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.

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Dated this the 16^th day of February, 2009.

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V. RAMKUMAR, JUDGE.

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Crl.R..P. No. 139/09 -:3:-

Hiranmayee Devi v. T.S.Sreekumaran Nair and Another

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Hiranmayee Devi v. T.S.Sreekumaran Nair and Another

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