High Court Kerala High Court

K.Purushothaman vs M.Kurian on 19 March, 2008

Kerala High Court
K.Purushothaman vs M.Kurian on 19 March, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 922 of 2008()



1. K.PURUSHOTHAMAN
                      ...  Petitioner

                        Vs

1. M.KURIAN
                       ...       Respondent

                For Petitioner  :SRI.P.P.RAMACHANDRAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :19/03/2008

 O R D E R
                           V.RAMKUMAR, J.
               .................................................
               Crl.R.P. No.          922 of 2008
                ................................................
                        Dated: 19-03-2008

                                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

C.C. No. 240 of 1999 on the file of the J.F.C.M., Mattannur

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 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

Crl.R..P. No. 2798 of 2008 -:2:-

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 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 what should be the proper

sentence to be imposed on the revision petitioner. Having

regard to the facts and circumstances of the case, I am

inclined to modify 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. Accordingly, for the conviction

under Section 138 of the Act the revision petitioner is

sentenced to pay a fine of Rs. 30,000/- (Rupees thirty

thousand only) (after giving credit to a sum of Rs. 5,000/-

already deposited before the trial court and which amount

Crl.R..P. No. 2798 of 2008 -:3:-

shall be permitted to be withdrawn by the respondent/

complainant) 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 ………. 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.

V. RAMKUMAR, JUDGE.

ani/-