IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 755 of 2009()
1. R.SUDHAKRAN, T.C. NO. 36/1492,
... Petitioner
Vs
1. A.VIKRAMAN, T.C. NO. X/357/A,
... Respondent
2. STATE OF KERALA, REP. BY THE
For Petitioner :SRI.G.SUDHEER
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :26/02/2009
O R D E R
V.RAMKUMAR, J.
.................................................
Crl.R.P. No. 755 of 2009
................................................
Dated: 26th February, 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. 3076 of 2000 on the file of the J.F.C.M. II,
Thiruvananthapuram, 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.1,85,000/-. The fine/compensation ordered by the
lower appellate court is Rs.1,85,000/-.
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
Crl.R..P. No. 755 of 2009 -:2:-
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 (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. 1,90,000/-. (Rupees one lakh ninety
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 six 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
Crl.R..P. No. 755 of 2009 -:3:-
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 26th day of February, 2009.
V. RAMKUMAR, JUDGE.
ani/-