IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 579 of 2008()
1. LAKSHMANAN, POOZHIKATTU THARAYIL
... Petitioner
2. VIMALA, W/O.LAKSHMANAN
Vs
1. MULAMOOTTIL LEASING & HIRE PURCHASE PVT.
... Respondent
2. STATE OF KERALA REP. BY
For Petitioner :SRI.ARUN.B.VARGHESE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :26/02/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 579 of 2008
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Dated this the 26th day of February, 2008
O R D E R
In this Revision filed under Section 397 read with Sec. 401
Cr.P.C. the petitioners who were the accused in C.C.No.958 of
2003 on the file of the J.F.C.M-I, Pathanamthitta, challenge the
conviction entered and the sentence passed against them 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
Petitioners and the learned Public Prosecutor.
3. The learned counsel appearing for the Revision
Petitioners re-iterated the contentions in support of the Revision.
The courts below have concurrently held that the cheque in
question was drawn by the petitioners 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
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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 Petitioners/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
petitioners 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
petitioners.
4. What now survives for consideration is the question
as to whether what should be the proper sentence to be
imposed on the revision petitioners. Having regard to the facts
and circumstances of the case, I am inclined to modify the
sentence imposed on the revision petitioners. 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
Sec. 357 (3) Cr.P.C. Accordingly, for the conviction under
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Section 138 of the Act the revision petitioners is sentenced to
pay a fine of Rs.30,000/-(Rupees thirty thousand only) The
said fine shall be paid as compensation under Section 357 (1)
Cr.P.C. The revision petitioners are 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 they fail to deposit or pay the said
amount within the aforementioned period they 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 petitioners.
V. RAMKUMAR, JUDGE.
sj
/True Copy/
P.A To Judge
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