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P.I. Basheer vs State Of Kerala on 6 March, 2009

Kerala High Court
P.I. Basheer vs State Of Kerala on 6 March, 2009
       

  

  

 
 
  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.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                    Crl.R.P. No. 773 of 2009
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
            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.

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