IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2149 of 2008()
1. C.VASUDEVAN
... Petitioner
Vs
1. N.GOPALAKRISHNAN
... Respondent
For Petitioner :SRI.V.V.RAJA
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :30/06/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No.2149 of 2008
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Dated this the 30th 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.No.552 of 1997 on the file of the J.F.C.M-1, Punalur,
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
Crl.R.P.No.2149/2008 -:2:-
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 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.60,000/-(Rupees
sixty thousand only) ( after giving credit to a sum of Rs.5,000/-
Crl.R.P.No.2149/2008 -:3:-
deposited by the revision petitioner before the trial court and
which amount shall be permitted to be withdrawn by the 1st
respondent/complainant) 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 four 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 forthwith, unless his continued detention
is found necessary in connection with any other case against
him. However, his release shall be subject to his paying or
depositing Rs.60,000/- within the above period of four months.
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 June, 2008.
V. RAMKUMAR, JUDGE.
sj
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