IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 780 of 2009()
1. ROBIN C JOSE, S/O.JOSE,CHAKKALAYIL(H)
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY PUBLIC
... Respondent
2. MATHEW J.CHALIL, S/O.JOSEPH,CHALIL HOUSE
For Petitioner :SRI.T.J.MICHAEL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :04/03/2009
O R D E R
V.RAMKUMAR, J.
.................................................
Crl.R.P. No. 780 of 2009
................................................
Dated, 4th March 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 C.C. No.
1062 of 2006 on the file of the J.F.C.M. I, Thodupuzha, 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. 1,90,000/-. The fine/compensation ordered
by the lower appellate court is Rs. 1,90,000/-.
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
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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 evidence 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 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.
In the result, this Revision is disposed of confirming the
conviction entered but modifying the sentence imposed on the
revision petitioner.
Dated this the 4th day of March 2009.
Sd./-V. RAMKUMAR, JUDGE.
/true copy/
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