IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1093 of 2010()
1. SHYLAJA,D/O.KAMAKSHI,SHIBU INDRALAYAM,
... Petitioner
Vs
1. K.SUDHA,D/O.SHANTHA,GOKULAM,POOVANPRA,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.S.D.ASOKAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :29/03/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No.1093 of 2010
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Dated, this the 29th day of March,2010
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.702 of
2004 on the file of the J.F.C.M-I, Attingal, 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.4,50,000/-. The compensation ordered by the lower appellate court
is Rs.5,00,000/-
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
Crl.R..P. No.1093/2010 -:2:-
the conviction. The said conviction has been recorded after a
careful evaluation of the oral and documentary evidence. This Court
sitting in the rarefied revisional jurisdiction will be loath to interfere
with the findings of fact recorded by the courts below concurrently 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
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. 5,00,000/-
(Rupees five lakhs 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
eight 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 29th day of March, 2010.
V. RAMKUMAR, JUDGE.
sj