P.Shani vs P.Chandran on 19 February, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 622 of 2010()


1. P.SHANI, S/O.BALAN,
                      ...  Petitioner

                        Vs



1. P.CHANDRAN,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.SIVARAM.R. MENON

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :19/02/2010

 O R D E R
                           V.RAMKUMAR, J.
                 .................................................
                   Crl.R.P. No. 622 of 2010
                 ................................................
                         Dated: 19-02-2010

                                 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 S.T. No.

5075 of 2002 on the file of the J.F.C.M. Ottappalam 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. 35,000/-. The fine/compensation

ordered by the lower appellate court is Rs. 35,000/-.

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 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

Crl.R..P. No. 622 of 2010 -:2:-

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. 40,000/-

(Rupees forty 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 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.

Sd/-V. RAMKUMAR, JUDGE.

ani/-

/true copy/

P.S. to Judge