IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 1142 of 2009() 1. K.V.PRAKASH, AGED 42 YEARS, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent 2. G.MOHANDAS, AGED 38 YEARS, For Petitioner :SRI.K.RAMESH For Respondent : No Appearance The Hon'ble MR. Justice V.RAMKUMAR Dated :31/03/2009 O R D E R V.RAMKUMAR, J. ====================== Crl.R.P. No. 1142 of 2009 ====================== Dated, this the 31st day of March, 2009 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 STC
No. 3118 of 2005 on the file of the Judicial First Class Magistrate-
II, Palakkad 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.75,000/-. The
fine/compensation ordered by the lower appellate court is
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
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clauses (a) and (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 conviction. The said
conviction has been recorded after a careful evaluation of the
oral and documentary evidence. 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 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. 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.78,000/-
(Rupees seventy eight thousand only). The said fine shall
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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 five 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 31st day of March, 2009.
V. RAMKUMAR, JUDGE.