Thulaseedharan vs Vincent Mathew on 25 February, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 645 of 2009()


1. THULASEEDHARAN, S/O.KUNJURAMAN
                      ...  Petitioner

                        Vs



1. VINCENT MATHEW, VINCENT HOUSE,
                       ...       Respondent

2. STATE OF KERALA, REP. BY THE PUBLIC

                For Petitioner  :SRI.B.MOHANLAL

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :25/02/2009

 O R D E R
                                V.RAMKUMAR, J.

                .................................................
                     Crl.R.P. No. 645 of 2009
                 ................................................
          Dated, this the 25th day of February, 2009.

                                 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.945 OF 2003 on the file of the Judicial First Class Magistrate

-II, Kottarakkara 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.90,000/-.

The fine/compensation ordered by the lower appellate court is

Rs.90,000/-.

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

Crl.R..P. No. 645/2009 -:2:-

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. I do not find any error,

illegality or impropriety in the evidence 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 recent 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.95,000/-

Crl.R..P. No. 645/2009 -:3:-

(Rupees ninety 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.

Dated this the 25th day of February, 2009.

V. RAMKUMAR, JUDGE.

rv