IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 262 of 2010()
1. R.GOPAKUMARAN NAIR
... Petitioner
2. STATE OF KERALA, REPRESENTED BY
Vs
1. R.GOPAKUMARAN NAIR
... Respondent
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :20/01/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 262 of 2010
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Dated, this the 20th day of January, 2010
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.179
of 2006 on the file of the J.F.C.M- VII, Thiruvananthapuram
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.1,75,000/-. The compensation
ordered by the lower appellate court is Rs.1,90,000/-.
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 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
Crl.R..P. No.262 /2010 -:2:-
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 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.1,90,000/-
(Rupees One lakh ninety 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 7 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 20h day of January, 2010.
V. RAMKUMAR, JUDGE.
sj