IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2024 of 2003()
1. VIJAYAN, S/O.SANKARAN ACHARI,
... Petitioner
Vs
1. KAVERI AMMAL, D/O.PUNNUMANI ACHARI,
... Respondent
2. THE STATE OF KERALA, REPRESENTED
For Petitioner :SRI.BABU S. NAIR
For Respondent :SRI.C.P.UDAYABHANU
The Hon'ble MR. Justice V.RAMKUMAR
Dated :06/01/2010
O R D E R
V.RAMKUMAR, J.
.................................................
Crl.R.P. No. 2024 of 2003
................................................
Dated: 6th day of January, 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. 416 of 2000 on the file of the J.F.C.M. Nilambur
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.25,000/- . The
fine/compensation ordered by the lower appellate court is
Rs.5,000/-.
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
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
Crl.R..P. No. 2024 of 2003 -:2:-
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 Rs. 30,000/-.
(Rupees thirty 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 five 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. Amount, if any,
deposited by the revision petitioner before the trial court shall
be given credit to while insisting on paying of deposit of the
aforesaid compensation.
Crl.R..P. No. 2024 of 2003 -:3:-
In the result, this Revision is disposed of confirming the
conviction entered but modifying the sentence imposed on the
revision petitioner.
Dated this the 6th day of January, 2010.
V. RAMKUMAR, JUDGE.
ani/-