IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 910 of 2010()
1. THANKAM VINU
... Petitioner
Vs
1. CHAITHANYA ENTERPRISES AND ANOTHER
... Respondent
For Petitioner :SRI.SUNIL SHANKER
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :12/03/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 910 of 2010
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Dated, this the 12th 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.40 of 2008 on the file of the Judicial First Class Magistrate –
II, Perumbavoor 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.
99,676/-. The fine/compensation ordered by the lower appellate
court is Rs.99,676/-.
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
Crl.R..P. No. 910/2010 -:2:-
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
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.1,03,000/-
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(Rupees one lakh and three 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 seven 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 12th day of March, 2010.
V. RAMKUMAR, JUDGE.
rv