IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 871 of 2010()
1. VALSALA KUMARI, AGED 46 YEARS,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. NEELAMBHARAN, CHOORALOORPANA,
For Petitioner :SRI.ALEXANDER GEORGE
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :10/03/2010
O R D E R
= = = = =V.RAMKUMAR,=2010 = =
J.
= = = = = = = ==
Dated, this the 10th day of=March, 2010
= = =Crl.R.P. = = =871=of = = = = =
= = =No. =
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 C.C. NO.
191 of 2007 on the file of the J.F.C.M. III, Kottarakkara, 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. 2,00,000/-. The compensation ordered by the
lower appellate court is Rs. 2,00,000/-.
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
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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 Rs. 2,05,000/- (Rupees two lakh five 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 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 10th day of March, 2010.
Sd/- V. RAMKUMAR, JUDGE.
ani
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