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
