IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1265 of 2009()
1. NINAN THOMAS, S/O.THOMAS NINAN,
... Petitioner
Vs
1. JAMES K.K., S/O.K.C.MATHEW,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.M.J.THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :30/04/2009
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 1265 OF 2009
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Dated: 30-03-2009
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. 2057 of 2005 on the file of
the J.F.C.M. II, Ettumanoor, 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.3,50,000/-. The fine/compensation ordered by the lower
appellate court is Rs.3,50,000/-.
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 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. I do not find any error,
Crl.R..P. No. 1265 of 2009 -:2:-
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 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. 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.3,60,000/-.
(Rupees three lakh sixty 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 seven 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 30th day of 2009.
V. RAMKUMAR, JUDGE.
ani/-
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