IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 540 of 2010()
1. MUHAMMED KUNJU, S/O.HAMEED KUNJU,
... Petitioner
Vs
1. G.SIVADASAN PILLAI, S/O.GOPALA PILLAI
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.M.DINESH
For Respondent :SRI.C.RAJENDRAN
The Hon'ble MR. Justice V.RAMKUMAR
Dated :16/02/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 540 of 2010
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Dated, this the 16th day of February, 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.165
of 2003 on the file of the J.F.C.M-II, Punalur 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.1,80,000/-. The compensation ordered by the
lower appellate court is Rs.50,000/-.
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
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have considered and rejected the 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. 1,85,000/-
(Rupees One lakh eighty 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
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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 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. The petitioner shall be released from prison
forthwith, unless his continued detention is found necessary in
connection with any other case against him. Registry shall
communicate this order to the Superintendent, Central Prison,
Poojappura, immediately. However, the petitioner’s release shall
be subject to his liability to pay compensation as aforesaid.
Dated this the 16h day of February, 2010.
V. RAMKUMAR, JUDGE.
sj