Kerala High Court
Thomas Varghese vs T.P.Philip on 10 December, 2010
Author: M.L. Joseph Francis
Bench: M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2676 of 2003()
1. THOMAS VARGHESE
... Petitioner
Vs
1. T.P.PHILIP
... Respondent
For Petitioner :SRI.JOSE J.MATHAIKAL
For Respondent :SRI.K.M.VARGHESE
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :10/12/2010
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.R.P.No. 2676 of 2003
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Dated this the 10th day of December, 2010
O R D E R
This Revision petition is filed by the accused in C.C. No. 124 of 2002 on the file of the C.J.M. Court, Kottayam challenging the conviction and sentence passed against him for the offence punishable under Section 138 of N.I. Act. The cheque amount was Rs.45,000/-. In the Trial Court, the accused was convicted and sentenced to undergo S.I. for a period of six months and to pay compensation of Rs.45,000/- to the complainant under Section 357(3) Cr.P.C. The appeal filed against that conviction and sentence was dismissed.
2. Heard learned counsel for the revision petitioner, learned counsel for the complainant and the learned Public Prosecutor.
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3. The learned counsel appearing for the revision petitioner reiterated the same contention raised before the Trial Court and the appellate court. Learned counsel for the complainant supported the judgment of the court below.
4. 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 N.I. 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 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. Crl.R.P.No. 2676 of 2003 3
5. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.45,000/- would meet the ends of justice. The said fine shall be paid as compensation under Section 357(1) of 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 to 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 aforesaid period, he shall suffer simple imprisonment for three months by way of default sentence. The amount if any deposited in the trial court by the accused can be given credit to.
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6. In the result, this Revision petition is disposed of confirming the conviction entered and by modifying the sentence imposed on the revision petitioner.
(M.L. JOSEPH FRANCIS) Judge tm