Sidharthan vs T.S.Muraleedharan on 15 January, 2010

Kerala High Court
Sidharthan vs T.S.Muraleedharan on 15 January, 2010




Crl.Rev.Pet.No. 541 of 2003(A)

                      ...  Petitioner


                       ...       Respondent



                For Petitioner  :SRI.T.G.RAJENDRAN

                For Respondent  :SRI.P.VIJAYA BHANU

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :15/01/2010

 O R D E R
                           V.RAMKUMAR, J.

                  = = = = = = = = = = = = = == = =
                       Crl.R.P. No. 541 of 2003
                  = = = = = = = = = = = = = = = = =
              Dated, this the 15th day of January, 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.42

of 1996 on the file of the J.F.C.M-I, Thrissur, 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.1,05,000/-. The fine/compensation ordered by the

lower appellate court is Rs.1,10,000/-.

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. This Court sitting in the rarefied revisional

jurisdiction will be loath to interfere with the findings of fact

recorded by the courts below concurrently. I do not find any

Crl.R..P. No.541 /2003 -:2:-

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.1,15,000/- (Rupees one lakh 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 4 months from today and produce a memo to

that effect before the trial Court in case of direct payment. Money, if

any deposited by the revision petitioner shall be adjusted towards the

compensation amount and the complainant shall be permitted to

withdraw the same. 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 15h day of January, 2010.



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