IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 1220 of 2008()
1. K. BABU, S/O. KUMARAN,
... Petitioner
Vs
1. ALAPPUZHA CO-OPERATIVE AGRICULTURAL
... Respondent
2. STATE OF KERALA,
For Petitioner :SRIR.AZAD BABU
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :09/04/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 1220 of 2008
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Dated, this the 9th day of April,2008.
O R D E R
In this Revision petition filed under Section 397 read with
Section 401 Cr.P.C. the petitioner who was the accused in C.C.
No. 596 of 2006 on the file of the Chief Judicial Magistrate,
Alappuzha challenges the conviction entered and the sentence
passed against him for an offence punishable under Section 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. 1220/2008 -: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 (2008(1) KLT 851) rendered on 3-8-
2007 in Crl. Appeal 1013 of 2007, default sentence cannot be
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imposed for the enforcement of an order for compensation under
Section 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.88,692/-. 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.
V. RAMKUMAR, JUDGE.
rv
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