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P.P.Sasikumar vs State Of Kerala on 7 April, 2009

Kerala High Court
P.P.Sasikumar vs State Of Kerala on 7 April, 2009




Crl.Rev.Pet.No. 1293 of 2009()

                      ...  Petitioner


                       ...       Respondent


                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.
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                      Crl.R.P. No.1293 of 2009
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               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

revision petitioner.

Dated this the 7h day of April, 2009.



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