IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3416 of 2010()
1. C.P.ACHUTHAN PILLAI, S/O.GOPALAN PILLAI,
... Petitioner
Vs
1. PARASMAL LUNAWAT,S/O.PADAMCHAND JAIN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.M.J.THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :30/11/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P.No. 3416 of 2010
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Dated this the 30th day of November, 2010
ORDER
In this Revision Petition filed under Section 397 read with
Section 401 Cr.P.C. the petitioner who was the accused in S.T.
No.450 of 2006 on the file of the Judicial First Class Magistrate
(Marad Cases), Kozhikode 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
`1,09,265/-. The fine/compensation ordered by the lower
appellate court is ` 1,09,265/-.
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
Crl.R.P. No. 3416/2010 : 2:
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. This Court sitting in the rarefied
revisional jurisdiction will be loath to interfere with the findings
of fact recorded by the Courts below concurrently. 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 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 ` 1,15,000/-
Crl.R.P. No. 3416/2010 : 3:
(Rupees one lakh and fifteen 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 six 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 30th day of November, 2010.
V. RAMKUMAR, JUDGE.
rv