IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 1293 of 2009() 1. P.P.SASIKUMAR, S/O.PARAMESWARAN, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY THE ... Respondent 2. SUKUMARAN, S/O.KANDUNNI For Petitioner :SRI.K.MANOJ CHANDRAN For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :07/04/2009 O R D E R V.RAMKUMAR, J. = = = = = = = = = = = = = == = = Crl.R.P. No.1293 of 2009 = = = = = = = = = = = = = = = = = Dated, this the 7th day of April, 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.564 of 2005 on the file of the J.F.C.M-II, Palakkad
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.55,000/-. The compensation
ordered by the lower appellate court is Rs.55,000/-.
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, illegality or
Crl.R..P. No. 1293/09 -:2:-
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.60,000/-
(Rupees 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 five 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
Dated this the 7h day of April, 2009.
V. RAMKUMAR, JUDGE.