IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 371 of 2008()
1. SUDHAKARAN, AGED 48 YEARS,
... Petitioner
Vs
1. VIINEESHKUMAR, S/O. GANGADHARAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.K.P.BALAGOPAL
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :11/02/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 371 of 2008
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Dated, this the 11th day of February,2008.
O R D E R
In this Revision filed under Section 397 read with Sec. 401
Cr.P.C. the petitioner who was the accused in S.T.C. No. 4523
of 2004 on the file of the Judicial First Class Magistrate, Chittur
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’).
2. I heard the learned counsel for the Revision Petitioner
and the learned Public Prosecutor and also the learned counsel
for the complainant.
3. The learned counsel appearing for the Revision
Petitioner re-iterated the contentions in support of the Revision.
The courts below have concurrently held that the cheque in
question was drawn by the petitioner in favour of the
complainant on the drawee bank, that the cheque was validly
presented to the bank, that it was dishonoured for reasons which
CRL. R.P.NO. 371/2008 -:2:-
fall under Section 138 of the Act, that the complainant made a
demand for payment by a notice in time in accordance with
clause (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 above finding. The said finding
has been recorded on an appreciation of the oral and
documentary evidence. I do not find any error, illegality or
impropriety in the finding so recorded concurrently by the courts
below. The conviction was thus rightly entered against the
petitioner.
4. What now survives for consideration is the question
as to whether what should be the proper sentence to be
imposed on the revision petitioner. Having regard to the facts
and circumstances of the case, I am inclined to modify 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 rendered on 3-8-2007
in Crl.Appeal 1013 of 2007, default sentence cannot be
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imposed for the enforcement of an order for compensation under
Sec. 357 (3) Cr.P.C. Accordingly, for the conviction under
Section 138 of the Act the revision petitioner is sentenced to pay
a fine of Rs.1,80,000/- (Rupees one lakh and eighty 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.
rv
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