Partly allowed

A.Abdul Gafoor v. B.T.Sampath and Another

Kerala HC10 Feb 2009Crl.Rev.Pet/414/2009

Case brief

AI extract

What is this about?

The Kerala High Court allowed a criminal revision petition challenging a conviction under Section 138 NI Act. Confirming the lower courts' view that statutory compliance was met, the judge modified the sentence from imprisonment to a fine of Rs. 53,000, relying on Supreme Court precedent barring default sentences for compensation enforcement.

What did the court decide?

Conviction confirmed. Sentence modified from imprisonment to a fine of Rs. 53,000 payable as compensation within four months.

A.Abdul Gafoor Vs B.T.Sampath and Another — Cheque Dishonour | 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 10TH FEBRUARY 2009 / 21ST MAGHA 1930

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Crl.Rev.Pet.No. 414 of 2009()

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----------------------------CRA.MNO. 423/07 OF ADDL. SESSIONS JUDGE, FAST TRACK COURT-III, PALAKKAD S.T.NO. 876/06 OF J.F.CM -I, PALAKKAD

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REVN. PETITIONER(S): APPELLANT/ACCUSED

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A.ABDUL GAFOOR, S/O.ABDUL RAHMAN,ROAD GANG (N.M.R.)MUNICIPAL OFFICE, PALAKKAD, RESIDING AT ARAKKAL HOUSE, PARALI P.O.PALAKKAD.

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BY ADV. SRI.SAJAN VARGHEESE K.

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RESPONDENT(S):

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B.T.SAMPATH, S/O.BALASUBRAMANIAN, NO.35,CHANDRA NAGAR, PALAKKAD.

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

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PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.RAMKUMAR, J.

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Crl.R.P. No. 414 of 2009

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Dated: 10^th 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 S.T. No. 876 of 2005 on the file of the J.F.C.M. I, Palakkad, 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 50,000/-. The fine/compensation ordered by the lower appellate court is Rs. 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 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

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Crl.R..P. No. 414 of 2009 -:2:-

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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. 53,000/ (Rupees fifty three 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 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.

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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 day 10th day of February, 2009.

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Sd/-V. RAMKUMAR, JUDGE.

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/true copy/

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ani/-

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Crl.R..P. No. 414 of 2009 -:3:-

A.Abdul Gafoor v. B.T.Sampath and Another

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A.Abdul Gafoor v. B.T.Sampath and Another

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