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