Posted On by &filed under High Court, Kerala High Court.


Kerala High Court
K.J.Thankachan vs State Of Kerala on 9 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 848 of 2010()


1. K.J.THANKACHAN, S/O.JOSEPH,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

2. PIUS BERNARD.V.C, S/O.CHACKO,

                For Petitioner  :M/S.VARGHESE & JACOB

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :09/03/2010

 O R D E R
                          V.RAMKUMAR, J.
                  .....................................................
                     Crl.R.P. No. 848                 of 2010
                  ......................................................
              Dated, this the 9th day of March, 2010

                                   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.

304 of 2006 on the file of the J.F.C.M.I, Peermade 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’). The cheque

amount was Rs. 1,88,000/-. The compensation ordered by the

lower appellate court is Rs.1,88,000/-.

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.

4. The courts below have concurrently held that the

cheque in question was drawn by the petitioner in favour of the

complainant, that the complainant had validly complied with

clauses (a) and (b) of the proviso to Section 138 of the Act. and

Crl.R.P. No. 848 of 2010 -:2:-

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 conviction. The said conviction has

been recorded after a careful evaluation of the oral and

documentary evidence. This Court sitting in the rarefied revisional

jurisdiction will be loath to interfere with the findings of fact

recorded by the courts below concurrently. I do not find any error,

illegality or impropriety in the conviction so recorded concurrently

by the courts below and the same is hereby confirmed.

5. What now survives for consideration is the legality of

the sentence imposed on the revision petitioner. In the light of

the 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. I am, therefore, inclined to modify the

sentence to one of fine only. Accordingly, for the conviction

under Section 138 of the Act the revision petitioner is sentenced to

pay a fine of Rs. 1,93,000/-. (Rupees one lakh ninety three

thousand 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

Crl.R.P. No. 848 of 2010 -:3:-

the Court below or directly pay the compensation to the

complainant within eight 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 9th day of March, 2010.

Sd/-V. RAMKUMAR, JUDGE.

ani

/true copy/

P.S. to Judge


Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

109 queries in 0.175 seconds.