IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 679 of 2010()
1. TOMY SEBASTIAN,AGED 44 YEARS,
... Petitioner
Vs
1. DAYANANDA,AGED 40 YEARS,
... Respondent
2. STATE OF KERALA,REPRESENTED BY PUBLIC
For Petitioner :SRI.C.KHALID
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :24/02/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No.679 of 2010
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Dated, this the 24th day of February, 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.63 of 2006 on the file of the J.F.C.M-II (Additional
Munsiff, Kasaragod) 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.1,01,590/-. The
compensation ordered by the lower appellate court is
Rs.1,01,590/-.
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
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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.
Dated this the 24h day of February, 2010.
V. RAMKUMAR, JUDGE.
sj
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