IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 4095 of 2007()
1. M/S.FATHIMA VENEERS
... Petitioner
2. ABDUL KHADER.K.M.,
3. MOIDEEN,M/S.FATHIMA VENEERS
Vs
1. P.A.MAKKAR,S/O.AHAMED
... Respondent
2. STATE OF KERALA,REP.BY THE
For Petitioner :SRI.RAJESH VIJAYAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :16/11/2007
O R D E R
V. RAMKUMAR, J.
````````````````````````````````````````````````````
Crl. R.P. No. 4095 OF 2007
````````````````````````````````````````````````````
Dated this the 16th day of November, 2007
O R D E R
In this revision filed under Section 397 read with Section
401 Cr.P.C. the petitioners who were the accused in C.C. No.840/2004
on the file of the J.F.C.M., Perumbavoor challenge the conviction
entered and the sentence passed against them for an offence
punishable under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as ‘the Act’).
2. I heard the learned counsel for the revision petitioners and
the learned Public Prosecutor.
3. The learned counsel appearing for the revision petitioners
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 petitioners 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 petitioners/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 petitioners
while entering the above finding. The said finding has been recorded
Crl.R.P.No.4095/07
: 2 :
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 petitioners.
4. What now survives for consideration is the question as to
whether a proper sentence has been imposed on the revision
petitioners. I am, however, inclined to modify the sentence in the light of
the recent pronouncement by the Supreme Court that no default
sentence can be imposed for an order for compensation under Section
357(3) Cr.P.C. Accordingly, the sentence imposed by the courts below
on the revision petitioners is set aside and instead each of them is
sentenced to pay a fine of Rs.73,000/- (Rupees seventy three thousand
only) within five months from today, failing which they shall suffer simple
imprisonment for three months by way of default sentence. As and
when the fine amount is deposited, the same shall be paid to the 1st
respondent complainant by way of compensation under Section 357(1)
Cr.P.C.
This revision is disposed of confirming the conviction but
modifying the sentence as above.
(V. RAMKUMAR, JUDGE)
aks