IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 664 of 2009()
1. ABDUL RAHIMAN
... Petitioner
Vs
1. V.MURALEEDHARAN
... Respondent
For Petitioner :SRI.SANTHARAM.P
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :18/02/2009
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 664 of 2009
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Dated, this the 18th day of February, 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.
736 of 2006 on the file of the Judicial First Class Magistrate-II,
Perambra 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.1,20,000/-. The
fine/compensation ordered by the lower appellate court is
Rs.1,20,000/-.
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
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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 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 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. 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. 1,20,000/-
(Rupees one lakh and twenty thousand only). The said
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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 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 prison unless his
continued detention is found necessary in connection with any
other case. However, his release shall be subject to his liability
to pay the above said amount.
In the result, this Revision is disposed of confirming the
conviction entered but modifying the sentence imposed on the
revision petitioner.
Dated this the 18th day of February, 2009.
V. RAMKUMAR, JUDGE.
Registry shall fax this Order to the Superintendent, Sub Jail, Koyilandy
immediately.
rv
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