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
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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
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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
Dated this the 9th day of March, 2010.
Sd/-V. RAMKUMAR, JUDGE.
P.S. to Judge