IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 773 of 2009()
1. P.I. BASHEER, AGED 48 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE PUBLIC
... Respondent
2. K.ABDUL RASHEED,
For Petitioner :SRI.C.K.SREEJITH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :06/03/2009
O R D E R
V. RAMKUMAR, J.
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Crl.R.P. No. 773 of 2009
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Dated this the 6th day of March, 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
C.C. No.535/2005 on the file of the Judicial First Class
Magistrate-II (Additional Munsiff) 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.2,00,000/- The compensation ordered by the lower
appellate court is Rs.2,00,000/-.
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 the matter and rejected the defence set
CRL.R.P. 773/09 -2-
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,
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
a recent decision of the Supreme Court in Ettappadan
Ahammedkutty V. 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.2,00,000/-
(Rupees two lakhs). 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
CRL.R.P. 773/09 -3-
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.
V. RAMKUMAR,
JUDGE.
mn.
