IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1205 of 2009()
1. V.V.RAMANAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.BABU KUMAR
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. 1205 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 C.C.
No.304/2005 on the file of the Judicial First Class Magistrate,
Ettumanoor 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. 3,00,000/-.
The compensation ordered by the lower appellate court is
Rs.3,00,000/-
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
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courts have considered the matter 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 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.3,05,000/-
(Rupees three lakhs five 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 eight months from today and produce a
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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.
mn.