Partly allowed

Omana v. State of Kerala and Another

Kerala HC19 Feb 2010Crl.Rev.Pet/311/2010

Case brief

AI extract

What is this about?

In a criminal revision petition, the High Court of Kerala confirmed the conviction of the petitioner for cheque dishonour but modified the sentence. Relying on precedent, the Court held that a default sentence cannot be imposed for enforcing compensation, ordering a fine instead.

What did the court decide?

Conviction confirmed; sentence modified to a fine of Rs.65,000 payable as compensation under Section 357(1) Cr.P.C., with simple imprisonment as default for non-payment.

Omana Vs State of Kerala and Another — 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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FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931

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Crl.Rev.Pet.No. 311 of 2010()

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----------------------------CRA.193/2009 of SESSIONS COURT, KOTTAYAM ST.1459/2007 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,ETTUMANUR

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REVN. PETITIONER(S): APPELLANT/ACCUSED:

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OMANA W/O.JANARDHANAN, MOOSSARIKUNNEL HOUSE, THELLAKAM P.O., KOTTAYAM.

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BY ADV. SRI.B.PREMOD

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SRI.SUDHEER GANESH KUMAR.R.

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RESPONDENT(S): COMPLAINANT:

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

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SEBASTIAN T.D., THURUTHIPARAMBIL HOUSE, THELLAKOM P.O., KOTTAYAM.

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PUBLIC PROSECUTOR SR.C.M.NAZAR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.RAMKUMAR, J.

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= = = = = = = = = = = = = == = = Crl.R.P. No.311 of 2010

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

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Dated, this the 19th day of February,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.No.1459 of 2007 on the file of the J.F.C.M-II, Ettumanoor 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.98,000/-. The compensation ordered by the lower appellate court is Rs.62,000/-

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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

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Crl.R..P. No.311/2010 -:2:-

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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 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 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.65,000/(Rupees sixty five 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 5 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 19th day of February, 2010.

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V. RAMKUMAR, JUDGE.

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Crl.R..P. No.311/2010 -:3:-

Omana v. State of Kerala and Another

Case brief

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Omana v. State of Kerala and Another

Case brief

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