IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3379 of 2010()
1. SHERI JOHNSON, W/O.JOHNSON,
... Petitioner
Vs
1. SAJI, S/O.SATHYAVRITHAN,
... Respondent
2. STATE OF KERALA REPRESENTED THE
For Petitioner :SRI.PRATHEESH.P
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :30/11/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P.No. 3379 of 2010
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Dated this the 30th day of November, 2010
ORDER
In this Revision Petition filed under Section 397 read with
Section 401 Cr.P.C. the petitioner who was the accused in C.C.
No.1330 of 2004 on the file of the Judicial First Class
Magistrate-II, Kollam 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 ` 90,000/-.
The fine/compensation ordered by the lower appellate court is
`90,000/-.
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
Crl.R.P. No. 3379/2010 : 2:
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
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 ` 1,00,000/-
Crl.R.P. No. 3379/2010 : 3:
(Rupees one lakh 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 six 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 30th day of November, 2010.
V. RAMKUMAR, JUDGE.
rv