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Rajan Pillai vs Gracy on 15 March, 2010

Kerala High Court
Rajan Pillai vs Gracy on 15 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 924 of 2010()



1. RAJAN PILLAI
                      ...  Petitioner

                        Vs

1. GRACY
                       ...       Respondent

                For Petitioner  :SRI.G.SREEKUMAR (CHELUR)

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :15/03/2010

 O R D E R
                       V.RAMKUMAR, J.

               ======================
                    Crl.R.P. No. 924 of 2010
               ======================
          Dated, this the 15th day of March, 2010.

                             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.879 of 2000 on the file of the Judicial First Class Magistrate,

Pala 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.40,000/-. The

fine/compensation ordered by the lower appellate court is

Rs.50,000/-.

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

Crl.R..P. No. 924/2010 -:2:-

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. This Court sitting in the rarefied

revisional jurisdiction will be loath to interfere with the findings of

fact recorded by the courts below concurrently. 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 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.50,000/-

Crl.R..P. No. 924/2010 -:3:-

(Rupees fifty 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 four 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 15th day of March, 2010.

V. RAMKUMAR, JUDGE.

rv

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