Partly allowed

M.K.Soman v. State of Kerala

Kerala HC19 Feb 2009Crl.Rev.Pet/59/2009

Case brief

AI extract

What is this about?

High Court confirmed the conviction of the accused for cheque bounce under Section 138 NI Act but modified the sentence. Relying on a Supreme Court decision, the court substituted default imprisonment with a fine payable as compensation. If unpaid within six months, simple imprisonment for three months may ensue.

What did the court decide?

Conviction confirmed. Sentence modified to fine of Rs. 1,50,000 payable as compensation. Default imprisonment of three months if amount not paid within six months.

M.K.Soman Vs State of Kerala — 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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THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930

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Crl.Rev.Pet.No. 59 of 2009()

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---------------------------CRA NO.696/2006 II ADDITIONAL SESSIONS JUDGE, ERNAKULAM C.C.NO.141/2004 ON THE FILES OF THE JFCM-1, KOCHI

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REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED

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M.K.SOMAN, KYTTATH HOUSE, POOCHAKAL.PO, CHERTHALA, ALAPPUZHA DISTRICT.

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BY ADV. SRI.R.DIVAKARAN

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RESPONDENT(S): RESPONDENT/COMPLAINANT

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

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KOLUTHARA SALES AND SERVICE IOC PUMB, KALOOR JUNCTION, COCHIN-17 REPRESENTED BY ITS POWER OF ATTORNEY HOLDER K.P.GEORGE.

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PUBLIC PROSECUTOR SRI.JAYAKRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.RAMKUMAR, J.

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

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Crl.R.P. No.59 of 2009

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= = = = = = = = = = = = = = = = = Dated, this the 19th 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 Sec. 401 Cr.P.C. the petitioner who was the accused in C.C.No.141 of 2004 on the file of the J.F.C.M-1, Kochi, challenges the conviction entered and the sentence 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.1,50,000/- The compensation ordered by the lower appellate court is Rs.1,50,000/-

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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 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. 59/2009 -: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. 1,50,000/- (Rupees one lakh 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 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 19^th day of February, 2009.

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V. RAMKUMAR, JUDGE.

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Crl.R..P. No. 59/2009 -:3:-

M.K.Soman v. State of Kerala

Case brief

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M.K.Soman v. State of Kerala

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