IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1949 of 2009()
1. M.SALIMAN,
... Petitioner
Vs
1. H.R.BABU SURESH,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.G.SUDHEER
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :19/03/2010
O R D E R
V.RAMKUMAR, J.
.................................................
Crl.R.P. No. 1949 OF 2009
................................................
Dated: 19th March, 2010
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. 102 of 2005 on the file of
the J.F.C.M. V, Neyyattinkara, 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.55,000/-. The fine/compensation
ordered by the lower appellate court is Rs. 60,000/-.
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
Crl.R..P. No. 2770 of 2010 -:2:-
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.
This Court sitting in the rarefied revisional jurisdiction will
be loath to interfere with the findings of fact recorded by
the Courts below concurrently. 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 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. 63,000/-.
(Rupees sixty three 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
Crl.R..P. No. 2770 of 2010 -:3:-
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 19th day of March, 2010.
V. RAMKUMAR, JUDGE.
ani/-