IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 4508 of 2006()
1. NAJEEM.M., SINI MANZIL,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. M.ABDUL SALAM, AMBALATHIL VILA VEEDU,
For Petitioner :SRI.C.RAJENDRAN
For Respondent :SRI.T.GOPALAKRISHNAN
The Hon'ble MR. Justice V.RAMKUMAR
Dated :29/07/2008
O R D E R
V. RAMKUMAR, J.
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CRL.REV. PET. NO.4508 OF 2006
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Dated this the 29th day of July, 2008
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.1462 of 2002 on the file of the Judicial First Class
Magistrate-I, Kollam, 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
CRL. R.P. NO. 4508 OF 2006
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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 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 what should be the proper sentence to be
imposed on the revision petitioner. Having regard to the facts
and circumstances of the case, I am inclined to modify the
sentence imposed on the revision petitioner. In the light of
the recent 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.
Accordingly, for the conviction under Section 138 of the Act
CRL. R.P. NO. 4508 OF 2006
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the revision petitioner is sentenced to pay a fine
of Rs.50,000/- . 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 day 29th July, 2008.
V. RAMKUMAR, JUDGE.
vsv