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M.K.Soman Vs State of Kerala & Another — Cheque Dishonour | Kerala HC (2009)

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Kerala HC
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M.K.Soman Vs State of Kerala & AnotherM.K.Soman v. State of Kerala & Another

M.K.Soman v. State of Kerala & Another

Kerala HC19 Feb 2009Crl.Rev.Pet/60/2009

Case brief

from the order text

What is this about?

HIGH COURT OF KERALA AT ERNAKULAM PRESENT :…

What the court decided

AI extract

Issue for consideration

Whether the conviction recorded by the courts below against the accused for cheque bounce was illegal and required to be set aside?

A

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR

THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930

Crl.Rev.Pet.No. 60 of 2009()

---------------------------AGAINST THE ORDER DATED 03/12/2007 IN CRA. 696 /2006 AND CRA.697/2006 of II ADDL.SESSIONS COURT, ERNAKULAM CC.142/2004 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI (CC. 141 /2004) .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED

---------------------------------------------------------------------------------------------------------------M.K.SOMAN, KYTTATH HOUSE, POOCHACKAL.PO, CHERTHALA, ALAPPUZHA DISTRICT.

BY ADV. SRI.R.DIVAKARAN SRI.VINUCHAND

RESPONDENT(S): RESPONDENT/COMPLAINANT

----------------------------------------------------------------------------1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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

Issues for consideration

2 issues framed by the court

AI extract

1.
Whether the conviction recorded by the courts below against the accused for cheque bounce was illegal and required to be set aside?
2.
Whether a default sentence of imprisonment could be imposed for the enforcement of an order for compensation under Section 357(3) Cr.P.C. in light of the Supreme Court decision in Ettappadan Ahammedku

Statutes considered

4 provisions across 2 enactments

AI extract

Code of Criminal ProcedureSection 397 read with Sec. 401 Cr.P.C.Section 357 (3) Cr.P.C.Section 357 (1) Cr.P.C.
Negotiable Instruments ActSec. 138 of the Negotiable Instruments Act, 1881

Case details

As recorded by the court registry

Court: Kerala HC
Decided on: 19 Feb 2009 · February
Registered: 22 Oct 2008
Case no.: Crl.Rev.Pet/60/2009

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Cite this judgement

M.K.Soman v. State of Kerala & Another, Crl.Rev.Pet/60/2009 (KL), decided on 19 February 2009.

The High Court of Kerala publishes no neutral citation for this judgement — cite it by case number and date of decision.

Statutes4

Code of Criminal ProcedureSection 397 read with Sec. 401 Cr.P.C. · Section 357 (3) Cr.P.C. · Section 357 (1) Cr.P.C.
Negotiable Instruments ActSec. 138 of the Negotiable Instruments Act, 1881

View all statutes

A compact analysis

This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.

PUBLIC PROSECUTOR SRI.JAYAKRISHNAN

SRI.PEARSON S.FERNANDEZ FOR R2

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

V.RAMKUMAR, J.

= = = = = = = = = = = = = == = = Crl.R.P. No.60 of 2009

= = = = = = = = = = = = = = = = = Dated, this the 19th day of February, 2009

O R D E R

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.142 of 2004 on the file of the J.F.C.M-I, 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.1,37,000/- The compensation ordered by the lower appellate court is Rs.1,37,000/-

I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor.

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, 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 recorded after a careful evaluation of the oral and documentary

Crl.R..P. No. 60/2009 -:2:-

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.

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. 1,37,000/- (Rupees One lakh thirty seven thousand). 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.

In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner.

Dated this the 19^th day of February, 2009.

V. RAMKUMAR, JUDGE.

sj

Crl.R..P. No. 60/2009 -:3:-

CNR

KLHC010198092009

Topic

Cheque Dishonour

Bench

Disposal

DISPOSED OF

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