IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 541 of 2003(A) 1. SIDHARTHAN, S/O. MALAYIL KELUKUTTY, ... Petitioner Vs 1. T.S.MURALEEDHARAN, S/O.SANKARANARAYANAN, ... Respondent 2. T.V.SANKARANARAYANAN, S/O. M.VELANDI, 3. STATE OF KERALA, 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
Dated this the 15h day of January, 2010.
V. RAMKUMAR, JUDGE.