IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 4281 of 2007()
1. N. GOPINATHAN NAIR,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. P.S. KUMAR,
For Petitioner :SRI.BIJU BALAKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :29/11/2007
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 4281 of 2007
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Dated this the 29th day of November, 2007
O R D E R
In this Revision filed under Section 397 read with Sec. 401
Cr.P.C. the petitioner who was the accused in C.C. No. 459 of
2002 on the file of the J.F.C.M-I, Nedumangadu 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’).
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.
The courts below have concurrently held that the cheque in
question was drawn by the petitioner 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
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 Petitioner/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
petitioner 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
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finding so recorded concurrently by the courts below. The
conviction was thus rightly entered against the petitioner.
4. What now survives for consideration is the question as
to whether a proper sentence has been imposed on the Revision
Petitioner. Having regard to the facts and circumstances of the
case, I am, however, inclined to modify the sentence in the light
of the recent pronouncement by the Supreme Court that no
default sentence can be imposed for an order for compensation
under Section 357(3) Cr.P.C. The sentence imposed on the
revision petitioner is set aside and instead he is sentenced to pay
fine of Rs.70,000/-(Rupees seventy thousand only) which shall be
deposited within four months from today and on default to make
the payment, he shall suffer simple imprisonment for three
months. The fine amount shall be paid as compensation under
Section 357(1) Cr.P.C. The petitioner shall be released from
prison forthwith unless his continued detention is found necessary
in connection with any other case against him. The above
release shall however be subject to his liability to pay the fine
amount as indicated above within four months.
This Revision is disposed of confirming the conviction but
modifying the sentence as above.
V. RAMKUMAR, JUDGE.
rv
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