IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 850 of 2010()
1. N.V.ABDUL NAZAR, S/O. SALAHUDEEN,
... Petitioner
Vs
1. SREE GOKULAM CHIT AND FINANCE CO.PVT.
... Respondent
2. STATE OF KERALA, REP. BY
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :09/03/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 850 of 2010
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Dated, this the 9th day of 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 S.T. No. 6143 of 2008
on the file of the J.F. C.M. II Kozhikode, 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. 83,400/-. The
compensation ordered by the lower appellate court is Rs.73,400/-.
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
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
Crl.R.P. No. 850 of 2010 -:2:-
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. 78,000/-.
(Rupees seventy eight 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 five 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.
Dated this the 9th day of March, 2010.
V. RAMKUMAR, JUDGE.
ani