High Court Kerala High Court

Shanmughan vs Sachidanandan on 29 February, 2008

Kerala High Court
Shanmughan vs Sachidanandan on 29 February, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 4326 of 2007()


1. SHANMUGHAN, S/O.VELAYUDHAN,
                      ...  Petitioner

                        Vs



1. SACHIDANANDAN, S/O.PARAMESWARAN,
                       ...       Respondent

2. STATE REPRESENTED BY THE PUBLIC

                For Petitioner  :SRI.M.SHAJU PURUSHOTHAMAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :29/02/2008

 O R D E R
                              V.RAMKUMAR, J.

                       .................................................

                           Crl.R.P. No. 4326 of 2007

                       ................................................

               Dated, this the 29th day of February,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. 376 of

2005 on the file of the Judicial First Class Magistrate, Kodungallur

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 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

CRL.R.P. NO. 4326/2007 -: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 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 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 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.50,000/-

(Rupees fifty 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 five

CRL.R.P. NO. 4326/2007 -:3:-

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. The

petitioner shall be released from custody forthwith unless his

continued detention is found necessary in connection with any other

case against him. His release shall be subject to his liability to pay the

aforesaid compensation within five months.

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