IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1729 of 2008()
1. K.M.RADHAKRISHNAN, S/O.MADHAVAN,
... Petitioner
Vs
1. ALEX ABRAHAM, NEW DIAL,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.JOHN JOSEPH(ROY)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :30/05/2008
O R D E R
V. RAMKUMAR, J.
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CRL.R.P. No.1729 of 2008
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Dated this the 30th day of May 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.1021/2005 on the
file of the JFCM II, Cherthala 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.
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 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
CRRP 1729 OF 2008 -:2:-
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 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.17,500/-(Rupees Seventeen thousand five hundred only) (after
giving credit to the sum of Rs.7,500/- deposited by the petitioner before
the trial court and which amount shall be permitted to be withdrawn by
the first respondent/complainant). The said fine shall be paid as
compensation under Section 357 (1) Cr.P.C. The revision petitioner is
CRRP 1729 OF 2008 -:3:-
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
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