IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1271 of 2008()
1. A.A. JOSEPH, S/O. AUGUSTINE,
... Petitioner
Vs
1. SUMA SAM,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.P.T.JOSE
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :26/05/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 1271 of 2008
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Dated, this the 26th day of May,2008.
O R D E R
In this Revision petition filed under Section 397 read with
Section 401 Cr.P.C. the petitioner who was the accused in C.C.
No. 317 of 2002 on the file of the Additional Chief Judicial
Magistrate, Ernakulam challenges the conviction entered and
the sentence passed against him 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 Petitioner
and the learned Public Prosecutor and also the learned counsel
for the complainant.
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
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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
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) rendered on 3-8-
2007 in Crl. Appeal 1013 of 2007, default sentence cannot be
imposed for the enforcement of an order for compensation under
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Section 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.50,000/- (Rupees fifty thousand only){after giving
credit to the sum of Rs.50,000/- deposited by the revision
petitioner before the trial court and which amount shall be
permitted to be withdrawn by the 1st 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 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 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.
rv
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