Viswanathan vs P.S. Prasannan on 11 February, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 249 of 2009()


1. VISWANATHAN, S/O. NANU, CHARIVUZHATHIL,
                      ...  Petitioner

                        Vs



1. P.S. PRASANNAN, PATTUKALATHIL VEEDU,
                       ...       Respondent

2. THE STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.IYPE JOSEPH

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :11/02/2009

 O R D E R
                       V.RAMKUMAR, J.
                     ...............................
                 Crl.R.P. No. 249 of 2009
             ................................................
        Dated, this the 11th day of February, 2009

                             O R D E R

In this Revision Petition filed under Section 397

read with Section 401 Cr.P.C. the petitioner who was the

accused in C.C.No.28 of 2005 on the file of the Judicial

First Class Magistrate Court-I, Chengannur 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.Two lakhs. The compensation

ordered by the lower appellate court is Rs.Two lakhs.

2. I heard the learned counsel for the Revision

Petitioner and the learned Public Prosecutor.

3. The learned counsel appearing for the Revision

Petitioner reiterated the contentions in support of the

Revision.

Crl.R.P.No.249 of 2009

– 2 –

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. 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 recent decision of the Supreme Court in

Crl.R.P.No.249 of 2009

– 3 –

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.2,00,000/- (Rupees Two lakhs 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 a

period of 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.

Crl.R.P.No.249 of 2009

– 4 –

In the result, this Revision is disposed of

confirming the conviction entered but modifying the

sentence imposed on the revision petitioner.

Dated this the 11th day of February, 2009.

V. RAMKUMAR, JUDGE.

skr