K.V.Prakash vs State Of Kerala on 31 March, 2009

Kerala High Court
K.V.Prakash vs State Of Kerala on 31 March, 2009
       

  

  

 
 
  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

Rs.75,000/-.

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

Crl.R..P. No. 1142/2009 -:2:-

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

Crl.R..P. No. 1142/2009 -:3:-

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

revision petitioner.

Dated this the 31st day of March, 2009.

V. RAMKUMAR, JUDGE.

rv

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