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K.BALAKRISHNAN,S/O.KUNHIKANNAN NAMBIAR versus P.VISWAMBHARAN,S/O.MADHAVAN

High Court of Kerala

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K.BALAKRISHNAN,S/O.KUNHIKANNAN NAMBIAR v. P.VISWAMBHARAN,S/O.MADHAVAN - Crl Rev Pet No. 3278 of 2007 [2007] RD-KL 17025 (10 September 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 3278 of 2007()

1. K.BALAKRISHNAN,S/O.KUNHIKANNAN NAMBIAR,
... Petitioner

Vs

1. P.VISWAMBHARAN,S/O.MADHAVAN,
... Respondent

2. STATE OF KERALA REPRESENTED BY PUBLIC

For Petitioner :SRI.K.B.GANGESH

For Respondent :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

Dated :10/09/2007

O R D E R

V. RAMKUMAR, J.

```````````````````````````````````````````````````` Crl. R.P. No. 3278 OF 2007 ````````````````````````````````````````````````````

Dated this the 10th day of September, 2007

O R D E R

In this Revision filed under Section 397 read with Sec. 401 Cr.P.C. the petitioner who was the accused in S.T. No.260/02 on the file of the CJM, Kozhikode 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').

2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor.

3. The learned counsel appearing for the Revision Petitioner re-iterated the contentions in support of the Revision. The courts below have concurrently held that the cheque in question was drawn by the revision petitioner in favour of the complainant on the drawee bank, that the cheque was validly presented to the bank, that it was dishonoured for reasons which fall under Section 138 of the Act, that the complainant made a demand for payment by a notice in time in accordance with clause (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 Crl.R.P.No.3278/07 while entering the above finding. The said finding has been recorded on an appreciation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the finding so recorded concurrently by the courts below. The conviction was thus rightly entered against the petitioner.

4. What now survives for consideration is the question as to whether a proper sentence has been imposed on the Revision Petitioner. I am, however, inclined to modify the sentence imposed on the revision petitioner provided he complies with the condition hereinafter mentioned. Accordingly, if the revision petitioner pays to the 1st respondent complainant by way of compensation under section 357 (3) Cr.P.C. a sum of Rs.50,000/- (Rupees fifty thousand only) within four months from today, then he need to undergo only imprisonment till the rising of the court. If on the other hand, the revision petitioner commits default in making the payment as aforesaid, he shall undergo simple imprisonment for three months by way of default sentence. Money, if any, paid by the revision petitioner pursuant to the orders, if any, passed by the lower appellate court shall be refunded to the revision petitioner. This Revision is disposed of confirming the conviction but modifying the sentence as above.

(V. RAMKUMAR, JUDGE)

aks


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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