IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 531 of 2009()
1. K.V.SOSA, D/O. VARKEY,
... Petitioner
Vs
1. VASU, S/O. KUNHIRAMAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.C.A.JOSEPH
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :12/02/2009
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 531 of 2009
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Dated: 12th February, 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 C.C. No. 26
of 1999 of the J.F.C.M. Kuthuparamba , 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.
50,000/-. The fine/compensation ordered by the lower
appellate court is Rs.50,000/-.
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 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
Crl.R..P. No. 531of 2009 -:2:-
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. 50,000/-. (Rupees fifty 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 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.
In the result, this Revision is disposed of confirming the
conviction entered but modifying the sentence imposed on the
revision petitioner.
Dated this the 12th day of February 2009.
V. RAMKUMAR, JUDGE.
ani/-
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