IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2267 of 2008()
1. K.SOBHANA, ASWATHY BHAVANAM, CONTONMENT
... Petitioner
Vs
1. S.PADMAKUMAR, THEKKEKARA PUTHEN VEEDU,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.K.SUBASH CHANDRA BOSE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :07/07/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P.No. 2267 of 2008
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Dated this the 7th day of July, 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
C.C.No.540/2000 on the file of the Judicial First Class Magistrate
Court-I, Kollam 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’).
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 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
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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
default 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.45,000/-. 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 four 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.
5. In the result, this revision is disposed of confirming the
conviction entered but modifying the sentence imposed on the
revision petitioner.
Dated this the 7th day of July, 2008.
V.RAMKUMAR,
JUDGE.
mn.
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