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P.D.Paul vs O.P.Mathew on 6 March, 2009

Kerala High Court
P.D.Paul vs O.P.Mathew on 6 March, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3907 of 2008()


1. P.D.PAUL, S/O.DAVID
                      ...  Petitioner

                        Vs



1. O.P.MATHEW, S/O.PAULOSE, OLAPPURAKKAL
                       ...       Respondent

2. STATE OF KERALA, REP. BY THE PUBLIC

                For Petitioner  :SRI.JOBY JACOB PULICKEKUDY

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :06/03/2009

 O R D E R
                              V.RAMKUMAR, J.
                  .................................................
                      Crl.R.P. No. 3907 of 2008
                   ................................................
                             Dated: 6-3-2009

                                    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. 12
of 2005 on the file of the J.F.C.M. I, Sulthanbathery, 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. 1,00,000/-. The fine/compensation ordered
by the lower appellate court is Rs. 1,00,000/-.

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

Crl.R..P. No. 3907 of 2008 -:2:-

documentary evidence. 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 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. 1,00,000/-. (Rupees one lakh
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 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.

Dated this the 6th day of March 2009.

V. RAMKUMAR, JUDGE.

Crl.R..P. No. 3907 of 2008 -:3:-

ani/-

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