Kumar vs P.P.Biju on 28 February, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 602 of 2008(E)



1. KUMAR
                      ...  Petitioner

                        Vs

1. P.P.BIJU
                       ...       Respondent

                For Petitioner  :SRI.C.M.TOMY

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :28/02/2008

 O R D E R
                        V.RAMKUMAR, J.
             .................................................
                  Crl.R.P. No. 602 of 2008
             ................................................
       Dated this the 28th day of February, 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.1177 of 2004 on the file of the J.F.C.M-I, Thodupuzha,

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

Crl.R.P.No.602/2008 -:2:-

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 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 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

Crl.R.P.No.602/2008 -:3:-

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.1,25,000/- (Rupees one lakh twenty five

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 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.

V. RAMKUMAR, JUDGE.

sj