Malayi Girish Kumar vs M.Premkumar on 24 March, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 971 of 2009()


1. MALAYI GIRISH KUMAR, 50 YEARS,
                      ...  Petitioner

                        Vs



1. M.PREMKUMAR, (COMPLAINANT),
                       ...       Respondent

2. STATE OF KERALA, REP. BY THE

                For Petitioner  :SRI.MANJERI SUNDERRAJ

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :24/03/2009

 O R D E R
                           V.RAMKUMAR, J.
                .................................................
                  Crl.R.P. No. 971 of 2009
                 ................................................
                  Dated: 24th March, 2009.

                                 O R D E R

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. 1615 of 2004 on the file of the J.F.C.M. V, 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’). The cheque amount was Rs. 80,000/-. The

fine/compensation ordered by the lower appellate court is Rs.

80,000/-.

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.

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 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

Crl.R..P. No. 971 of 2009 -:2:-

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.

5. What now survives for consideration is the legality of

the sentence imposed on the revision petitioner. In the light of

the recent 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. 85,000/-

(Rupees eighty 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 five 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.

In the result, this Revision is disposed of confirming the

conviction entered but modifying the sentence imposed on the

revision petitioner.

Dated this the 24th day of March, 2009.

Sd/-V. RAMKUMAR, JUDGE.

ani/-                        /true copy/