IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2790 of 2008()
1. SHABEER, MANGALAM HOUSE, MUTTADA,
... Petitioner
Vs
1. INDUS MOTOR CO. LTD., TV 2/1418
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :19/08/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 2790 of 2008
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Dated: 19-08-2008
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. 541 of
2004 on the file of the J.F.C.M. V, 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’).
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 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 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
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was thus rightly entered against the petitioner.
4. What now survives for consideration is the question as to
whether what should be the proper sentence to be imposed on the
revision petitioner. Having regard to the facts and circumstances of
the case, I am inclined to modify 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. Accordingly, for the
conviction under Section 138 of the Act the revision petitioner is
sentenced to pay a fine of Rs. 4,60,000/- (Rupees four lakh sixty
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 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 19th day of August 2008.
V. RAMKUMAR, JUDGE.
ani/-
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