The court highlighted that failure to honor a cheque leads to liability under Section 138 and compensation principles under Section 357 must be carefully applied.

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 C.C. No. 72 of 2004 on the file of the Chief Judicial Magistrate, Pathanamthitta challenges the conviction entered and the sentence passed against her for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act').

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. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant on the drawee bank, that the cheque was validly presented to the bank, that it was dishonoured for reasons which fall under Section 138 of the Act, that the complainant made a demand for payment by a notice in time in accordance with clause (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 above finding. The said finding has been recorded on an appreciation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the finding so recorded concurrently by the courts below. The conviction was thus rightly entered against the petitioner.

4. What now survives for consideration is the question as to whether what should be the proper sentence to be imposed on the revision petitioner. Having regard to the facts and circumstances of the case, I am inclined to modify 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. Accordingly, for the conviction under Section 138 of the Act the revision petitioner is sentenced to pay a fine of Rs. 1,50,000/- (Rupees one lakh 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 seven months from today and produce a memo to that effect before the trial Court in case of direct payment. If she fails to deposit or pay the said amount within the aforementioned period she 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 5th day of August 2008.