IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 4003 of 2008()
1. ABDUL REHIM, AGED 35 YEARS
... Petitioner
Vs
1. E.M.SHAMSUDEEN
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.K.REGHU KOTTAPPURAM
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :19/02/2009
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 4003 2008
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Dated: 19-02-2009
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. 41 of 2004
on the file of the J.F.C.M. , Vaikom, 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. 1,00,000/-. The
fine/compensation ordered by the lower appellate court is Rs.1,00,000/-.
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 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 evidence so recorded concurrently
Crl.R.P. No. 4003 of 2008 -:2:-
by the courts belowand 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. 1,00,000/-.(Rupees one
lakh 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 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.
In the result, this Revision is disposed of confirming the conviction
entered but modifying the sentence imposed on the revision petitioner.
Dated this the 19th day of February, 2009.
Sd/-V. RAMKUMAR, JUDGE.
/true copy/
ani/-
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