IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1113 of 2010()
1. M/S.HABS AQUA SERVICES, DEVAGIRI,
... Petitioner
2. HANS DEVARAJ, MANAGING PARTNER,
Vs
1. M/S.HIGASHIMARU FEEDS (INDIA) LTD.,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.BIJU BALAKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :08/04/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 1113 of 2010
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Dated, this the 8th day of April, 2010.
O R D E R
In this Revision Petition filed under Section 397 read with
Sec. 401 Cr.P.C. the petitioners who were the accused in C.C.
No.470 of 2004 on the file of the Judicial First Class Magistrate-I,
Ernakulam 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’). The cheque amount was Rs.3,41,000/-. The
fine/compensation ordered by the lower appellate court as
against the 1st petitioner is Rs.10000/- and the 2nd petitioner is
Rs.3,50,000/-.
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.
4. The courts below have concurrently held that the
cheque in question was drawn by the petitioners in favour of the
complainant, that the complainant had validly complied with
Crl.R..P. No. 1113/2010 -:2:-
clauses (a) and (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 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 petitioners. 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
Crl.R..P. No. 1113/2010 -:3:-
2nd revision petitioner is sentenced to pay a fine of
Rs.3,51,000/- (Rupees three lakhs and fifty one thousand
only). The sentence of fine as against the 1st petitioner is not
interfered with. The fine amount of Rs.3,51,000/- shall be paid
as compensation under Section 357 (1) Cr.P.C. The 2nd revision
petitioner is permitted either to deposit the said fine amount
before the Court below or directly pay the compensation to the
complainant within six months from today and produce a memo
to that effect before the trial Court in case of direct payment. If
the 2nd revision petitioner fails to deposit or pay the said
amount within the aforementioned period, the 2nd revision
petitioner 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.
Dated this the 8th day of April, 2010.
V. RAMKUMAR, JUDGE.
rv
