IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1762 of 2008()
1. C.P.GEORGE, CHATHANKUZHIYIL HOUSE
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. REJI K.ALIYAS, KAVUMMOLEL HOUSE
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :05/06/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 1762 of 2008
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Dated, this the 5th day of June,2008.
O R D E R
In this Revision petition filed under Section 397 read with
Section 401 Cr.P.C. the petitioner who was the accused in C.C. No.
106 of 2002 on the file of the Judicial First Class Magistrate,
Kolencherry challenges the conviction entered and the sentence
passed against him for an offence punishable under Section 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 and also the learned counsel for the
complainant.
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 138 of the Act
CRL.R.P. NO. 1762/2008 -:2:-
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) rendered on 3-8-2007 in Crl. Appeal 1013 of 2007, default
sentence cannot be imposed for the enforcement of an order for
compensation under Section 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.3,50,000/- (Rupees three lakhs and fifty
thousand only). The said fine shall be paid as compensation under
Section 357 (1) Cr.P.C. The revision petitioner is permitted either to
CRL.R.P. NO. 1762/2008 -:3:-
deposit the said fine amount before the Court below or directly pay
the compensation to the complainant within seven 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. The petitioner shall be
released from custody forthwith unless his continued detention is
found necessary in connection with any other case against him.
However, his release shall be subject to his liability to pay the amount
of Rs.3,50,000/- to the 1st respondent/complainant within seven
months.
In the result, this Revision is disposed of confirming the
conviction entered but modifying the sentence imposed on the
revision petitioner.
V. RAMKUMAR, JUDGE.
rv