Partly allowed

Mohammed Rafeeque v. State of Kerala & Another

Kerala HC17 Feb 2009Crl.Rev.Pet/283/2009

Case brief

AI extract

What is this about?

The High Court of Kerala in a criminal revision petition confirmed the conviction for cheque dishonour under Section 138 of the Negotiable Instruments Act. Relying on the Supreme Court decision in Ettappadan Ahammedkutty, the Court held that a default sentence is impermissible for enforcing compensation under Section 357(3) Cr.P.C. and modified the sentence to a pay-able fine.

What did the court decide?

The conviction was confirmed; the sentence was modified to a fine of Rs. 2,60,000 payable as compensation, with simple imprisonment for three months only in case of default on payment within eight mon

Mohammed Rafeeque Vs State of Kerala & Another — Execution and Attachment | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE V.RAMKUMAR

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TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930

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Crl.Rev.Pet.No. 283 of 2009()

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REVN. PETITIONER/APPELLANT/ACCUSED:-

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MOHAMMED RAFEEQUE S/O.ARABI BEARY @ AMMABBA, HASSEENA MANZIL, OPP.OLD POLICE STATION MAIN ROAD, ULLAL POST, MANGLORE TALUK.

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BY ADV. MR. BECHU KURIAN THOMAS

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RESPONDENTS/RESPONDENTS/COMPLAINANT:-

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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M.SHRIDHARA SHETTY S/O.MALINGA SHETTY, YAMINI NILAYA, MUTTAM, MANGAL PADY, VILLAGE AND POST KASARGOD TALUK.

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ADV. MR. JAYAKRISHNAN, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.RAMKUMAR, J.

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====================== Crl.R.P. No. 283 of 2009

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======================

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Dated, this the 17^th day of February, 2009

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O R D E R

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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. 152 of 2005 on the file of the Judicial First Class Magistrate, Kasaragod 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.2,50,000/-. The compensation ordered by the lower appellate court is Rs.2,50,000/-.

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I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor.

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The learned counsel appearing for the Revision Petitioner re-iterated the contentions in support of the Revision.

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The courts below have concurrently held that the

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cheque in question was drawn by the petitioner in favour of the complainant, that the complainant had validly complied with

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Crl.R..P. No. 283/2009 -:2:-

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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.

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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.2,60,000/-

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(Rupees two lakhs and sixty thousand only). The said fine

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Crl.R..P. No. 283/2009 -:3:-

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shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioner is permitted either to deposit the said fine

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amount before the Court below or directly pay the compensation to the complainant within eight 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.

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In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner.

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Dated this the 17^th day of February, 2009.

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V. RAMKUMAR, JUDGE.

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Mohammed Rafeeque v. State of Kerala & Another

Case brief

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Mohammed Rafeeque v. State of Kerala & Another

Case brief

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