IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 920 of 2009()
1. P.MANOHARAN PUTHENVILA VEEDU,
... Petitioner
Vs
1. SHRACHI SECURITIES LTD. P15, INDIA
... Respondent
2. STATE OF KERALA, REP. BY PUBLIC
For Petitioner :SRI.T.A.UNNIKRISHNAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :13/03/2009
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No.920 of 2009
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Dated, this the the 13th day of March, 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 C.C.No.329
of 2002 on the file of the Chief Judicial Magistrate,
Thiruvananthapuram, 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.1,80,000/- The
compensation ordered by the lower appellate court is Rs.1,80,000/-
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
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while entering 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.
1,90,000/- (Rupees one lakh ninety 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 seven 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.
Dated this the 13TH day of March 2009.
V. RAMKUMAR, JUDGE.
sj
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