IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 925 of 2008()
1. HARRY FEMANDAS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. M. SHAMSUDEEN,
For Petitioner :SRI.P.M.JOSHI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :19/03/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 925 of 2008
................................................
Dated: 19-03-2008
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
C.C. No. 5 of 1996 on the file of the J.F.C.M.,I, Punalur
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
Crl.R..P. No. 925 of 2008 -:2:-
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 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. 85,000/- (Rupees eighty five
thousand only). The said fine shall be paid as
compensation under Section 357 (1) Cr.P.C. The revision
Crl.R..P. No. 925 of 2008 -:3:-
petitioner is permitted either to deposit the said fine
amount before the Court below or directly pay the
compensation to the complainant within three 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.
V. RAMKUMAR, JUDGE.
ani/-