Shaji Mathew vs C.P.John on 2 April, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1209 of 2009()


1. SHAJI MATHEW, S/O.MATHEW, AGED 35,
                      ...  Petitioner

                        Vs



1. C.P.JOHN, S/O.MATHAI PHILIPOSE,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.S.MUHAMMED HANEEFF

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :02/04/2009

 O R D E R
                       V. RAMKUMAR, J.
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                  Crl.R.P. No. 1209 of 2009
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             Dated this the 2nd day of April, 2009

                            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.113/2003 on the file of the Chief Judicial Magistrate Court,

Pathanamthitta 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. 75,000/-.

The compensation ordered by the lower appellate court is

Rs.85,000/-

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 the matter and rejected the defence set

CRRP 1209/09 -2-

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. 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

a recent decision of the Supreme Court in Ettappadan

Ahammedkutty V. 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.87,000/-

(Rupees eighty seven thousand). 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

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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.

mn.