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Ummer vs A.S.Upareeswaran on 29 November, 2010

Kerala High Court
Ummer vs A.S.Upareeswaran on 29 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3387 of 2010()


1. UMMER, S/O.SAYED MUHAMMED,
                      ...  Petitioner

                        Vs



1. A.S.UPAREESWARAN, AGED 62 YEARS,
                       ...       Respondent

2. THE STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.P.SANTHOSH  (PODUVAL)

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :29/11/2010

 O R D E R
                             V.RAMKUMAR, J.

               .................................................
                       Crl.R.P. No.3387 of 2010
               ................................................
               Dated this the 29th day of November, 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.387/2003

on the file of the J.F.C.M-III,Thrissur, 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

`1,00,000/- (Rupees one lakh only). The compensation ordered by

the lower appellate court is `1,05,000/- (Rupees one lakh five

thousand only).

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

Crl.R..P. No.3387/2010 -:2:-

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

`1,10,000/- (Rupees one lakh ten 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

Crl.R..P. No.3387/2010 -:3:-

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 29th day of November, 2010.

V. RAMKUMAR, JUDGE.

sj

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