IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 45 of 2008()
1. C.SULAIMAN,S/O. KADER
... Petitioner
Vs
1. M.A.ASSOO,MUSTHAFA MANSIL,
... Respondent
2. STATE OF KERALA
For Petitioner :SRI.C.V.MANUVILSON
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :08/02/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 45 of 2008
................................................
Dated, this the 8th day of February,2008.
O R D E R
In this Revision filed under Section 397 read with Sec. 401
Cr.P.C., the petitioner who was the accused in C.C.No.15/1999
on the file of the Judicial First Class Magistrate, Thalassery
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 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 Negotiable Instruments Act, that
CRL.R.P.45/2008 2
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 Negotiable Instruments 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 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
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Section 138 of the Act, the revision petitioner is sentenced to pay
a fine of 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 legal representatives of the deceased
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.
V. RAMKUMAR, JUDGE
css/
CRL.R.P.45/2008 4