IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1494 of 2008(Y)
1. BINU, S/O.THANKAPPAN, AGED 34 YEARS,
... Petitioner
Vs
1. RAVEENDRAN PILLAI @ PODYAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.R.S.KALKURA
For Respondent :SRI.B.MOHANLAL
The Hon'ble MR. Justice V.RAMKUMAR
Dated :27/06/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 1494 of 2008
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Dated: 27th day of June 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. 16 of 2001
on the file of the J.F.C.M. Paravur 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
finding so recorded concurrently by the courts below. The conviction
Crl.R..P. No. 1494 of 2008 -:2:-
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. 40,000/- (Rupees forty 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 five 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 27th day of June 2008.
V. RAMKUMAR, JUDGE.
ani/-
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