T.K.Suresh vs Babu on 4 January, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 30 of 2010()



1. T.K.SURESH
                      ...  Petitioner

                        Vs

1. BABU
                       ...       Respondent

                For Petitioner  :SRI.M.B.PRAJITH

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :04/01/2010

 O R D E R
                              V.RAMKUMAR, J.
                    .................................................
                        Crl.R.P. No. 30 of 2010
                     ................................................
                            Dated:         04-01-2010

                                    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. 89 of 2008

on the file of the J.F.C.M., Kodungallur 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.1,10,000/-

(Rupees one lakh ten thousand only). The fine/compensation ordered

by the lower appellate court is Rs. 1,20,000/- (Rupees one lakh twenty

thousand only)

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

Crl.R..P. No. 30 of 2010 -:2:-

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 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. 1,25,000/-

(Rupees one lakh twenty 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 day 4th day of January, 2010.

Sd/-V. RAMKUMAR, JUDGE.

ani/-                     /true copy/

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