Partly allowed

Subhash Sait v. Sree Gokulam Chits and Finance

Kerala HC2 Dec 2010Crl.Rev.Pet/2725/2010

Case brief

AI extract

What is this about?

The Court disposed of a criminal revision petition filed under Sections 397 and 401 Cr.P.C. against a conviction for cheque dishonour. Confirming the lower courts' findings on the legality of the conviction and statutory notice compliance, the Court modified the sentence from imprisonment to a fine of Rs. 1,88,000, with a default sentence of simple imprisonment for three months in case of failure

What did the court decide?

Conviction confirmed; sentence modified to fine of Rs. 1,88,000 payable as compensation within six months, with default imprisonment of three months for non-payment.

Subhash Sait Vs Sree Gokulam Chits and Finance — Cheque Dishonour | Kerala HC (2010)

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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 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932

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Crl.Rev.Pet.No. 2725 of 2010()

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------------------------------------CRA.540/2009 of I ADDL. SESSIONS COURT, PALAKKAD ST.2515/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD

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REVN. PETITIONER(S): APPELLANT/ACCUSED

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-----------------------------------------------------

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SUBHASH SAIT, S/O. MAHADEVAN, SHEENA NIVAS, SHORNUR, PALAKKAD.

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BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH)

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RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE OF KERALA

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---------------------------------------------------------------------------

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1. SREE GOKULAM CHITS AND FINANCE (P)LTD., R.S.ROAD, PALAKKAD, REP. BY K.K.SUBHASH KUMAR, S/O. KRISHNAN, PULINELLI, KOTTAYI, PALAKKAD (LEGAL CLERK), PULINELLI POST OFFICE, PIN-678 572.

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2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/12/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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svs

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V.RAMKUMAR, J.

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................................................. Crl.R.P. No.2725 of 2010

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Dated this the 2^nd day of December, 2010.

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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 S.T.C. No. 2515 of 2008 on the file of the Judicial First Class Magistrate-III, Palakkad 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 1,83,906/-. The fine/compensation ordered by the lower appellate court is 1,85,000/-.

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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

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Crl..R.P. No. 2725/2010

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: 2:

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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. This Court sitting in the rarefied revisional jurisdiction will be loath to interfere with the findings of fact recorded by the Courts below concurrently. 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. No doubt, now after the decision of the Apex Court in Vijayan v. Sadanandan K. and Another (2009) 6 SCC 652 it is permissible for the Court to slap a default sentence of imprisonment while awarding compensation under Sec. 357 (3) Cr.P.C. But, in that event, a sentence of imprisonment will be inevitable. I am, however, of the view that in the facts and circumstances of this case a sentence of fine with an appropriate default sentence will suffice. Accordingly, for the conviction under Section 138 of the Act the revision petitioner is sentenced to pay a fine of `1,88,000/- (Rupees one lakh and eighty eight thousand

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Crl..R.P. No. 2725/2010

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: 3:

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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 2^nd day of December, 2010.

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V. RAMKUMAR, JUDGE.

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Subhash Sait v. Sree Gokulam Chits and Finance

Case brief

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Subhash Sait v. Sree Gokulam Chits and Finance

Case brief

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