Partly allowed

Francis Xavier v. Jose Babu and Anor.

Kerala HC19 Feb 2010Crl.Rev.Pet/433/2010

Case brief

AI extract

What is this about?

The court confirmed the conviction of the appellant for cheque dishonour but modified the sentence. Relying on precedent, it held that a default sentence cannot be imposed for compensation enforcement, substituting it with a fine only, including a default imprisonment option.

What did the court decide?

Conviction confirmed; default sentence modified to fine of Rs. 58,500/- payable as compensation within five months; failure attracts simple imprisonment of three months.

Francis Xavier Vs Jose Babu and Anor. — 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 FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931

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Crl.Rev.Pet.No. 433 of 2010() ----------------------------CRA.1079/2006 of I ADDL. SESSIONS COURT, TRIVANDRUM CC.29/2005 of OF J.F.C.M. IV, NEYYATTINKARA

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REVN. PETITIONER(S): ACCUSED

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FRANCIS XAVIER,AGED 54 YEARS, S/O.JOHN SAMARDHAKOM, PROPRIETOR SUTHARYA ELECTRONICS INDUSTRIES NMC.XI/645,COURT ROAD, NEYYATTINKARA.

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BY ADV. SRI.D.ROBINSON

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RESPONDENT(S): COMPLAINANTS & STATE

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JOSE BABU,S/O.JOHN SASTHRI, MUSAB COTTAGE,T.C.NO44/692, VALIARATHALA,THIRUVANANTHAPURAM.

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

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PUBLIC PROSECUTOR SRI. 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. 433 of 2010

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................................................ Dated: 19^th day of February, 2010

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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. 29 of 2005 on the file of the J.F.C.M. IV, Neyyattinkara, 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.53,500/-. The fine/compensation ordered by the lower appellate court is Rs. 53,500/-.

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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

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Crl.R.P. 433 of 2010 -:2:-

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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. 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. 58,500/- (Rupees fifty eight thousand five hundred 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 five months from today and produce a memo to that effect before the

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Crl.R.P. 433 of 2010

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-:3:-

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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, 2010

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V. RAMKUMAR, JUDGE.

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ani/-

Francis Xavier v. Jose Babu and Anor.

Case brief

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Francis Xavier v. Jose Babu and Anor.

Case brief

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