K.Gopalan vs A.J.Khalid on 28 March, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 1038 of 2008()



1. K.GOPALAN
                      ...  Petitioner

                        Vs

1. A.J.KHALID
                       ...       Respondent

                For Petitioner  :SRI.SAJU.S.A

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :28/03/2008

 O R D E R
                        V.RAMKUMAR, J.
                .................................................
                    Crl.R.P. No. 1038 of 2008
                ................................................
            Dated, this the 28th day of March,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.C.

No. 25 of 2005 on the file of the Judicial First Class Magistrate-II,

Kanjirappally 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. 1038/2008 -: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

CRL.R.P. NO. 1038/2008 -:3:-

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.10,000/- (Rupees ten 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 three 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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