B. Suresh vs N.I. Kuriakose on 25 August, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3320 of 2006()


1. B. SURESH, ABHILASH HOUSE,
                      ...  Petitioner

                        Vs



1. N.I. KURIAKOSE,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.S.PRASANTH

                For Respondent  :SRI.JOBI JOSE KONDODY

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :25/08/2008

 O R D E R
                              V.RAMKUMAR, J.
               .................................................
                          Crl.R.P.No.3320 of 2006
                ................................................
                Dated this the 25th day of August, 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.1192 of 2004 on the file

of the J.F.C.M-II (Mobile Court), Kottayam, 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 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

Crl.R.P.No.3320/2006 -:2:-

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.25,000/- (Rupees twenty five

thousand 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 ten days 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 25th day of August, 2008.

V. RAMKUMAR, JUDGE.

sj

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