IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2884 of 2008()
1. P.HARIDAS
... Petitioner
Vs
1. M.PRAKASAN
... Respondent
For Petitioner :SRI.K.R.VINOD
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :22/08/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 2884 of 2008
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Dated: 22-08-2008
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.
1033 of 2005 on the file of the Special Judicial First Class
Magistrate Court (Marad Cases), Kozhikode) 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 the courts have
considered and rejected the defence set up by the revision
Crl.R..P. No. 2884 of 2008 -:2:-
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. 2,00,000/- (Rupees two lakhs 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 seven 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.
5. The petitioner shall be released from prison unless his
continued detention is found necessary in connection with any
other case. However, his release shall be subject to his liability to
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pay the above said amount.
In the result, this Revision is disposed of confirming the
conviction entered but modifying the sentence imposed on the
revision petitioner.
Dated this the 22nd day of August 2008.
V. RAMKUMAR, JUDGE.
ani/-
Registry shall fax this order to the Superintendent of Prison,
where the petitioner is housed.