IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1237 of 2009()
1. MRS. SHASTHA, AGED 38 YEARS,
... Petitioner
Vs
1. MEENA PANICKER, AGED 59 YEARS,
... Respondent
2. STATE OF KERALA, REP. BY PUBLIC
For Petitioner :SRI.N.M.MOHAMMED AYUB
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :05/05/2009
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No.1237 of 2009
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Dated, this the the 5th day of May, 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.2029 of
2007 on the file of the J.F.C.M-I, Kochi challenges the conviction
entered and the sentence passed against her for an offence
punishable under Sec. 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as ‘the Act’). The cheque amount was
Rs.2,50,000/-. The compensation ordered by the lower appellate court
is Rs.2,50,000/-
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
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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.
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.
2,50,000/- (Rupees two lakhs fifty 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 eight months from today and produce a memo
to that effect before the trial Court in case of direct payment. If she
fails to deposit or pay the said amount within the aforementioned
period she 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 5th day of May 2009.
V. RAMKUMAR, JUDGE.
sj
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