IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2411 of 2008()
1. ABDUL SALAM, S/O.ALIYARUKUNJU,
... Petitioner
Vs
1. SABU, S/O.SEBASTIAN, KALLARACKAL VEEDU,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.M.SREEKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :18/07/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No.2411 of 2008
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Dated this the 18th 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 S.T.No.3549 of 2005 on the
file of the J.F.C.M-1, Nedumangad, 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. 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. 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
Crl.R.P.No.2411/ 2008 -:2:-
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),
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.58,500/-(Rupees fifty eight thousand five hundred only) [after
giving credit to the sum of Rs.11,500/- deposited by the revision petitioner
before the trial court and which amount shall be permitted to be withdrawn
by 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
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directly pay the compensation to the complainant within three 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 18th day of July, 2008.
V. RAMKUMAR, JUDGE.
sj