IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3977 of 2007()
1. S.SURESH KUMAR
... Petitioner
Vs
1. P.JAYAKUMAR AND ANOTHER
... Respondent
For Petitioner :SRI.SERGI JOSEPH THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :06/11/2007
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. No. 3977 OF 2007
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Dated this the 6th day of November, 2007
O R D E R
In this revision filed under Section 397 read with Section
401 Cr.P.C. the petitioner who was the accused in C.C. No.157/2001 on
the file of the J.F.C.M.-II, Nedumangad challenges the conviction
entered and the sentence passed against him for an offence punishable
under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as ‘the Act’).
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. The courts below
have concurrently held that the cheque in question was drawn by the
revision petitioner in favour of the complainant on the drawee bank, that
the cheque was validly presented to the bank, that it was dishonoured
for reasons which fall under Section 138 of the Act, that the
complainant made a demand for payment by a notice in time in
accordance with clause (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 above finding. The said finding has been recorded
Crl.R.P.No.3977/07
: 2 :
on an appreciation of the oral and documentary evidence. I do not find
any error, illegality or impropriety in the finding so recorded concurrently
by the courts below. The conviction was thus rightly entered against
the petitioner.
4. What now survives for consideration is the question as to
whether a proper sentence has been imposed on the revision petitioner.
I am, however, inclined to modify the sentence in the light of the recent
pronouncement by the Supreme Court that no default sentence can be
imposed for an order for compensation under Section 357(3) Cr.P.C.
Accordingly, the sentence imposed by the courts below on the revision
petitioner is set aside and instead he is sentenced to pay a fine of
Rs.13,000/- (Rupees thirteen thousand only) within three months from
today, failing which he shall suffer simple imprisonment for three months
by way of default sentence. As and when the fine amount is deposited,
the same shall be paid to the 1st respondent complainant by way of
compensation under Section 357(1) Cr.P.C.
This revision is disposed of confirming the conviction but
modifying the sentence as above.
(V. RAMKUMAR, JUDGE)
aks