AYYAPPA MENON Vs. OLIVER FERNADEZ

JUDGEMENT

(1.) In this unnumbered petition filed under Section 482, Cr.P.C, the petitioner who was the accused in S.T. Case No. 187 of 2002 on the file of the Judicial First Class Magistrate II, Thiruvananthapuram, seeks to modify the sentence imposed by this Court as per the final order dated 17.6.2008 in Crl. R.P. No. 1965 of 2008. The High Court Registry raised an objection regarding the maintainability of this petition and that is how the matter has come up for resolution on the judicial side.

(2.) The above S.T. case was a prosecution under Section 138 of the Negotiable Instruments Act, 1881 ("the N.I. Act" for short). The amount involved in the cheque in question of the year 2001 was Rs. 4,50,000/-. The Trial Court convicted the petitioner and sentenced him to imprisonment till the rising of the Court and to pay the cheque amount as compensation under Section 357(3), Cr.P.C. with a default sentence of simple imprisonment for one year. On appeal preferred by the petitioner as Crl. Appeal No. 816 of 2005 before the Sessions Court, Thiruvananthapuram, that Court as per judgment dated 29.2.2008 dismissed the appeal confirming the conviction entered and the sentence passed by the trial Court. It was aggrieved by the appellate judgment dismissing the appeal that the petitioner filed the above revision before this Court under Sections 397 and 401. Cr.P.C. This Court as per final order dated 17.6.2008, disposed of the revision by confirming the conviction and holding that in the light of the decision of the Apex Court in Ettappadan Ahammedkutty v. E.R Abdullakoya, 2008 1 KerLT 851. default sentence cannot be imposed for the enforcement of an order for compensation under Section 357(3), Cr.P.C. and accordingly altered the sentence by imposing the cheque amount of Rs. 4,50,000/- as fine under Section 138 of the Negotiable Instruments Act. The fine amount was directed to be paid as compensation to the complainant under Section 357(1), Cr.P.C. This Court granted seven months' time to the revision petitioner either to deposit the fine amount in the trial Court or directly pay the same to the complainant within the said seven months" period. This Court reduced the default sentence from 1 year to 3 months. It is the said direction of this Court which is challenged in this petition filed under Section 482, Cr.P.C.

(3.) According to the petitioner, this Court by converting the order for compensation under Section 357(3) into one of fine and directing payment of the fine amount as compensation under Section 357(1), had enhanced the sentence in a revision filed by the accused. Therefore, the direction passed by this Court is, according to the petitioner, contrary to law and liable to be corrected in this petition filed under Section 482, Cr.P.C.