Partly allowed

Dr.a.Asokan v. R.Gopinathan

Kerala HC17 Feb 2009Crl.Rev.Pet/427/2009

Case brief

AI extract

What is this about?

The High Court of Kerala revised an appeal challenging conviction and default sentence under Section 138 of the Negotiable Instruments Act. The court upheld the conviction but modified the default imprisonment sentence to a fine payable as compensation.

What did the court decide?

Conviction confirmed; default imprisonment sentence modified to a fine of Rs. 35,000 payable as compensation within three months.

Dr.a.Asokan Vs R.Gopinathan — 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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TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930

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Crl.Rev.Pet.No. 427 of 2009(C)

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CRA. NO. 675/2007 of ADDL. SESSIONS COURT, FAST TRACK (ADHOC) COURT -III, PALAKKAD S.T. C NO. 516/2006 of JUDICIAL FIRST CLASS MAGISTRATE -I, PALAKKAD.

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REVN. PETITIONER/APPELLANT/ACCUSED:-

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DR.A.ASOKAN,S/O.LATE APPUKUTTAN, MEDICAL OFFICER, GOVERNMENT AYURVEDA HOSPITAL SULTHANPETA (HPO), PALAKKAD DISTRICT.

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BY ADV. MR. RAJESH SIVARAMANKUTTY

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RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:-

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R.GOPINATHAN , S/O.LATE K.RAMAN VAIDHYAR ABHILASH, DEVI NAGAR, VADAKKANTHARA, PALAKKAD.

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STATE OF KERALA, REP. BY PUBLIC PREOSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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ADV. MR. JAYAKRISHNAN, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.RAMKUMAR, J.

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====================== Crl.R.P. No. 427 of 2009

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======================

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Dated, this the 17^th day of February, 2009

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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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Sec. 401 Cr.P.C. the petitioner who was the accused in S.T. Case

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No. 516 of 2006 on the file of the Judicial First Class Magistrate-I, Palakkad challenges the conviction entered and the sentence

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passed against him for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). The cheque amount was Rs.32,000/-. The compensation ordered by the lower appellate court is Rs.35,000/-.

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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

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cheque in question was drawn by the petitioner in favour of the complainant, that the complainant had validly complied with

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Crl.R..P. No. 427/2009 -:2:-

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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 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. 35,000/(Rupees thirty five thousand only). The said fine shall be

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Crl.R..P. No. 427/2009 -:3:-

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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 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 17^th day of February, 2009.

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V. RAMKUMAR, JUDGE.

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Dr.a.Asokan v. R.Gopinathan

Case brief

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Dr.a.Asokan v. R.Gopinathan

Case brief

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