IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 2677 of 2008() 1. GOPALAKRISHNAN REDDIAR ... Petitioner Vs 1. HARIKUMAR ... Respondent For Petitioner :SRI.LIJU.V.STEPHEN For Respondent : No Appearance The Hon'ble MR. Justice V.RAMKUMAR Dated :11/08/2008 O R D E R V.RAMKUMAR, J. ................................................. Crl.R.P. No.2677 of 2008 ................................................ Dated this the 11th 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 S.T..No.30 of 2005 on the file of
the Chief Judicial Magistrate, Pathanamthitta, 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 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.70,000/-(Rupees seventy 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 11th day of August, 2008.
V. RAMKUMAR, JUDGE.