M/S.Habs Aqua Services vs M/S.Higashimaru Feeds (India) … on 8 April, 2010

Kerala High Court
M/S.Habs Aqua Services vs M/S.Higashimaru Feeds (India) … on 8 April, 2010
       

  

  

 
 
  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.

              ======================
                    Crl.R.P. No. 1113 of 2010
              ======================
            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

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