Y.A.Fazil vs V.Madhavan Nair And Others on 13 February, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 569 of 2009()



1. Y.A.FAZIL
                      ...  Petitioner

                        Vs

1. V.MADHAVAN NAIR AND OTHERS
                       ...       Respondent

                For Petitioner  :SRI.G.SUDHEER

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :13/02/2009

 O R D E R
                       V.RAMKUMAR, J.
                      .............................
                 Crl.R.P. No.569 of 2009
             ................................................
       Dated, this the 13th 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 S.T.No.388 of 2006 on the file of the Judicial

First Class Magistrate Court-VII, Thiruvananthapuram

challenges the conviction entered and the sentence passed

against him for an offence punishable under Section 138 of

the Negotiable Instruments Act, 1881 (hereinafter referred

to as ‘the Act’). The cheque amount was Rs.50,000/-. The

compensation ordered by the lower appellate court is

Rs.50,000/-.

2. I heard the learned counsel for the Revision

Petitioner and the learned Public Prosecutor.

3. The learned counsel appearing for the Revision

Petitioner reiterated 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

Crl.R..P. No. 569/2009 -:2:-

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

Ettappadan Ahammedkutty v. E.P. Abdullakoya – 2008

(1) KLT 851 default sentence cannot be imposed for the

enforcement of an order for compensation under Section

357(3) Cr.P.C. I am, therefore, inclined to modify the

sentence to one of fine only. Accordingly, for the

Crl.R..P. No. 569/2009 -:3:-

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 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.

In the result, this Revision is disposed of confirming

the conviction entered but modifying the sentence imposed

on the revision petitioner.

Dated this the 13th day of February, 2009.

Sd/-

V. RAMKUMAR, JUDGE.

Skr
// True copy //
P.A. to Judge.