IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 521 of 2007()
1. KURUPPUNGATTU KIZHAKKAYIL BHASKARAN,
... Petitioner
Vs
1. V.V. PRASAD, S/O. KUMARAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.R.SUDHISH
For Respondent :SRI.C.VATHSALAN
The Hon'ble MR. Justice V.RAMKUMAR
Dated :01/07/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No.521 of 2007
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Dated this the 1st day of July, 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.36 of 1997
on the file of the J.F.C.M, Vadakara, 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. Heard both sides.
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 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
Crl.R.P.No.521 /2007 -:2:-
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.1,00,000/-(Rupees one lakh 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
Crl.R.P.No.521 /2007 -:3:-
months by way of default sentence. Money, if any, deposited by the
revision petitioner before the trial court shall be deducted from the
said one lakh to be deposited by the revision petitioner. Money lying
in deposit shall be permitted to be withdrawn by the 1st respondent/
complainant. The petitioner shall be released from prison forthwith,
unless his continued detention is found necessary in connection with
any other case against him. However, his release shall be subject to
his liability to pay or deposit the said amount of one lakh within the
above period of five months.
In the result, this Revision is disposed of confirming the
conviction entered but modifying the sentence imposed on the
revision petitioner.
Dated this the 1st day of July, 2008.
V. RAMKUMAR, JUDGE.
sj /True Copy/
P.A To Judge