Partly allowed

K.G.Sahadevan v. Vijayaraghavan Unni & Another

Kerala HC1 Dec 2010Crl.Rev.Pet/3289/2010

Case brief

AI extract

What is this about?

The High Court of Kerala confirmed the conviction of the appellant under Section 138 of the Negotiable Instruments Act for cheque dishonour. The court modified the sentence by imposing a fine instead of imprisonment, with a directive to pay as compensation and a default imprisonment period.

What did the court decide?

The conviction was confirmed, and the sentence was modified to a fine of Rs. 2,05,000 payable within three months, with simple imprisonment for three months as a default sentence in case of failure to

K.G.Sahadevan Vs Vijayaraghavan Unni & 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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WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932

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Crl.Rev.Pet.No. 3289 of 2010()

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------------------------------------------CRA. NO.494/09 OF ADDL. SESSIONS COURT, (ADHOC III), PALAKKAD. S.T. NO.2956/2006 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT- I, PALAKKAD.

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

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K.G.SAHADEVAN ,AGED 57 YEARS S/O.GOPALAN, RESIDING AT KALAMPUZHA, VADAKKANTHARA AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT.

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BY ADV. SRI.NIREESH MATHEW

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RESPONDENT(S): RESPONDENT/COMPLAINANT STATE

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

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1. VIJAYARAGHAVAN UNNI, S/O.NARAYANAN NAIR, VIJAYA SREE, THIRUNELLAYI PALAM,PIRAYIRI AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT.

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

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BY PUBLIC PROSECUTOR SRI.V.TEKCHAND

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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tss

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V.RAMKUMAR, J.

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................................................. Crl.R.P. No. 3289 of 2010

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Dated this the 1^st 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. 2956 of 2006 on the file of the Judicial First Class Magistrate-I, 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 2,00,000/-. The fine/compensation ordered by the lower appellate court is 2,00,000/-.

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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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: 2:

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Crl. R.P. No. 3289/2010

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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 `2,05,000/- (Rupees two lakhs and five thousand only). The

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Crl. R.P. No. 3289/2010

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: 3:

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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 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 1^st day of December, 2010.

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V. RAMKUMAR, JUDGE.

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K.G.Sahadevan v. Vijayaraghavan Unni & Another

Case brief

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K.G.Sahadevan v. Vijayaraghavan Unni & Another

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