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Shameen vs Jayadevan on 13 February, 2009

Kerala High Court
Shameen vs Jayadevan on 13 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 581 of 2009()


1. SHAMEEN, HAJIVILA VEEDU
                      ...  Petitioner

                        Vs



1. JAYADEVAN, S/O.SIVAMAYAM,
                       ...       Respondent

2. STATE OF KERALA, REP. BY THE PUBLIC

                For Petitioner  :SRI.NAGARAJ NARAYANAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :13/02/2009

 O R D E R
                          V.RAMKUMAR, J.
                  = = = = = = = = = = = = = == = =
                       Crl.R.P.No.581 of 2009
                  = = = = = = = = = = = = = = = = =
            Dated, this the 13th day of February, 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 S.T.No.398/2006
on the file of the J.F.C.M-II, Varkala, 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.12,000/-. The compensation ordered by the lower appellate court
is also Rs.12,000/-

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

Crl.R..P. No. 581/09 -:2:-

recorded after a careful evaluation of the oral and documentary
evidence. 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
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.
15,000/- (Rupees fifteen 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 two 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 13th day of February, 2009.

V. RAMKUMAR, JUDGE.

sj

Crl.R..P. No. 581/09 -:3:-

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