Sali Rajan vs Shahanas Jaffar on 25 March, 2009

Kerala High Court
Sali Rajan vs Shahanas Jaffar on 25 March, 2009




Crl.Rev.Pet.No. 1085 of 2009()

                      ...  Petitioner


                       ...       Respondent


                For Petitioner  :SRI.P.V.BIJUMON

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :25/03/2009

 O R D E R
                           V.RAMKUMAR, J.
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                      Crl.R.P.No.1085 of 2009
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            Dated, this the the 25th day of 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.52 of 2006
on the file of the J.F.C.M-II, Kottayam, challenges the conviction
entered and the sentence passed against her for an offence punishable
under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as ‘the Act’). The cheque amount was Rs.1,80,000/-. The
compensation ordered by the lower appellate court is Rs.1,80,000/-

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

Crl.R..P. No.1085/09 -:2:-

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.1,80,000/- (Rupees one lakh eighty 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 she
fails to deposit or pay the said amount within the aforementioned
period she 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 25th day of March 2009.



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