IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3037 of 2009()
1. S.PRABHAKARAN, KUTTUMPURATHU VEEDU,
... Petitioner
Vs
1. K.RAJEEVAN, MANNANARTHU KIZHAKKATHIL,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.V.V.RAJA
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :23/02/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 3037 of 2009
................................................
Dated: 23rd February, 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 C.C. No. 40 of 2003 on the file of the J.F.C.M.,
Karunagappally, 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.40,000/-. The
fine/compensation ordered by the lower appellate court is
Rs.40,000/-.
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
Crl.R..P. No. 3037 of 2009 -:2:-
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
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. 45,000/- (Rupees forty five 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 four 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
Crl.R..P. No. 3037 of 2009 -:3:-
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 23rd day of February, 2010
Sd/-V. RAMKUMAR, JUDGE.
ani/-
/true copy/
P.S. to Judge