P.O.Joseph vs M/S.Chaithanya Enterprises on 11 February, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 424 of 2009()


1. P.O.JOSEPH
                      ...  Petitioner

                        Vs



1. M/S.CHAITHANYA ENTERPRISES
                       ...       Respondent

2. STATE OF KERALA

                For Petitioner  :SRI.V.V.SIDHARTHAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :11/02/2009

 O R D E R
                       V.RAMKUMAR, J.
                      .............................
                  Crl.R.P. No.424 of 2009
             ................................................
        Dated, this the 11th day of February, 2009.

                             O R D E R

In this Revision Petition filed under Section 397

read with Section 401 Cr.P.C. the petitioner who was the

accused in C.C.No.1184 of 2005 on the file of the Judicial

First Class Magistrate Court, Perumbavoor 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.1,72,975/-. The

compensation ordered by the lower appellate court is

Rs.1,62,975/-

2. I heard the learned counsel for the Revision

Petitioner and the learned Public Prosecutor.

3. The learned counsel appearing for the Revision

Petitioner reiterated the contentions in support of the

Revision.

Crl.R.P.No.424/2009

– 2 –

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, 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

Crl.R.P.No.424/2009

– 3 –

(1) KLT 851 default sentence cannot be imposed for the

enforcement of an order for compensation under Section

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.1,72,000/-

(Rupees one lakh seventy two 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 a

period of 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.

Crl.R.P.No.424/2009

– 4 –

In the result, this Revision is disposed of confirming

the conviction entered but modifying the sentence imposed

on the revision petitioner.

Dated this the 11th day of February, 2009.

V. RAMKUMAR, JUDGE.

skr