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Kerala High Court

Mohammed Farooq vs Mohammed Sheriff @ Shaji on 12 February, 2009

Author: V.Ramkumar

Bench: V.Ramkumar

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 530 of 2009()


1. MOHAMMED FAROOQ, NELLIMOOTTIL HOUSE,
                      ...  Petitioner

                        Vs



1. MOHAMMED SHERIFF @ SHAJI, MANAGING
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY ITS

                For Petitioner  :SRI.V.K.SUNIL

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :12/02/2009

 O R D E R
                              V.RAMKUMAR, J.
                  .................................................
                       Crl.R.P. No. 530 of 2009
                   ................................................
                      Dated: 12th February, 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 S.T. No. 348 of 2005 on the file of the J.F.C.M., Pathanamthitta, 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. 37,303/-. The fine/compensation ordered by the lower appellate court is Rs.37,303/-.

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 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  Crl.R..P. No. 530 of 2009 -:2:- 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 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. 37,303/-. (Rupees thirty seven thousand three hundred and three 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.

Dated this the 12th day of February 2009.

V. RAMKUMAR, JUDGE.

ani/-