IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 515 of 2008()
1. V.J. JOSEPH, AGED 46 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THOMAS JOSEPH, S/O. JOSEPH,
For Petitioner :SRI.K.S.HARIHARAPUTHRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :27/02/2008
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 515 of 2008
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Dated, this the 27th day of February,2008.
O R D E R
In this Revision filed under Section 397 read with Sec. 401
Cr.P.C. the petitioner who was the accused in C.C. No. 79 of 2003 on
the file of the Judicial First Class Magistrate-II, Kanjirappally,
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’).
2. I heard the learned counsel for the Revision Petitioner and
the learned Public Prosecutor and also the learned counsel for the
complainant.
3. The learned counsel appearing for the Revision Petitioner
re-iterated the contentions in support of the Revision. The courts
below have concurrently held that the cheque in question was drawn
by the petitioner in favour of the complainant on the drawee bank,
that the cheque was validly presented to the bank, that it was
dishonoured for reasons which fall under Section 138 of the Act, that
the complainant made a demand for payment by a notice in time in
accordance with clause (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 above finding. The said finding has been
recorded on an appreciation of the oral and documentary evidence. I
do not find any error, illegality or impropriety in the finding so
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recorded concurrently by the courts below. The conviction was thus
rightly entered against the petitioner.
4. What now survives for consideration is the question as to
whether what should be the proper sentence to be imposed on the
revision petitioner. Having regard to the facts and circumstances of
the case, I am inclined to modify 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 rendered on 3-
8-2007 in Crl.Appeal 1013 of 2007, default sentence cannot be
imposed for the enforcement of an order for compensation under Sec.
357 (3) Cr.P.C. Accordingly, for the conviction under Section 138 of
the Act the revision petitioner is sentenced to pay a fine
of Rs.50,000/- (Rupees fifty 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 four 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.
V. RAMKUMAR, JUDGE.
rv
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