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Jayakrishnan.K. vs Rajeevan.K. on 7 February, 2008

Kerala High Court
Jayakrishnan.K. vs Rajeevan.K. on 7 February, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 330 of 2008()


1. JAYAKRISHNAN.K., S/O.A.B.NARAYANAN,
                      ...  Petitioner

                        Vs



1. RAJEEVAN.K., S/O.P.NARAYANAN NAIR,
                       ...       Respondent

2. STATE OF KERALA REPRESENTED BY THE

                For Petitioner  :SRI.T.B.SHAJIMON

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :07/02/2008

 O R D E R
                           V.RAMKUMAR, J.

                  .................................................

                       Crl.R.P. No. 330  of 2008

                   ................................................

            Dated, this the 7th day of February,2008.


                                   O R D E R

In this Revision filed under Section 397 read with Sec. 401

Cr.P.C. the petitioner who was the accused in C.C. No. 477

of 2001 on the file of the Judicial First Class Magistrate-II,

Hosdurg 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 and also the learned counsel

for the complainant.

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

CRL.R.P. NO. 330/2008 : 2:

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 rendered on 3-8-2007

in Crl.Appeal 1013 of 2007, default sentence cannot be

CRL.R.P. NO. 330/2008 : 3:

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.50,000/- (Rupees fifty 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 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.

In the result, this Revision is disposed of confirming the

conviction entered but modifying the sentence imposed on the

revision petitioner.

V. RAMKUMAR, JUDGE.

rv

CRL.R.P. NO. 330/2008 : 4:

V. RAMKUMAR, J

======================

CRL. M.A. No.815 of 2008

in

Unnumbered CrlL. R.P. of 2007

=======================

Date:07.02.2008

ORDER

This is a petition to condone the delay of 80 days in filing the

above revision. In view of the proposed disposal of the Crl. R.P.,

notice to the 1st respondent/complainant is dispensed with. Having

regard to the averments in the affidavit in support of this petition, the

delay of 80 days in filing the above revision is condoned.

Registry to number the revision today itself.

V. RAMKUMAR, JUDGE.

rv

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