Sudhakaran Master Aged 49 Years vs Hamza on 22 January, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 307 of 2010()


1. SUDHAKARAN MASTER AGED 49 YEARS,
                      ...  Petitioner

                        Vs



1. HAMZA S/O. MOOSA, CHOLAYIL HOUSE,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED  BY

                For Petitioner  :SRI.P.VENUGOPAL (1086/92)

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :22/01/2010

 O R D E R
                           V.RAMKUMAR, J.
                .................................................
                   Crl.R.P. No. 307 of 2010
                 ................................................
                    Dated: 22nd 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 S.T. No.

343 of 2005 on the file of the Chief Judicial Magistrate, Manjeri,

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. 1,00,000/-. The

fine/compensation ordered by the lower appellate court is Rs.

1,00,750/-.

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

Crl.R..P. No. 307 of 2010 -:2:-

revisional jurisdiction will be loath to interfere with the findings

of fact recorded by the Courts below concurrently. 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 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. 1,05,000/-.

(Rupees one lakh five 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.

V. RAMKUMAR, JUDGE.

Crl.R..P. No. 307 of 2010 -:3:-

ani/-