IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2824 of 2010()
1. KHALEEL SIDHEEK, MANAGING PARTNER,
... Petitioner
Vs
1. HAMSA, S/O.CHERIYA KUNHAYAMMU,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.P.VIJAYA BHANU (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :01/12/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 2824 of 2010
................................................
Dated this the 1st day of December, 2010.
O R D E R
In this Revision Petition filed under Section 397 read with Sec. 401
Cr.P.C., petitioners who were the accused in C.C. No.395 of 2003 on the file
of the Judicial First Class Magistrate, Mannarkkad challenge the conviction
entered and the sentence passed against them for an offence punishable
under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred
to as ‘the Act’). The cheque amount was `1,00,000/-. The
fine/compensation ordered by the lower appellate court is `1,10,000/-.
2. I heard the learned counsel for the Revision Petitioners and the
learned Public Prosecutor.
3. The learned counsel appearing for the Revision Petitioners 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 petitioners 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 Petitioners/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
petitioners while entering the conviction. The said conviction has been
recorded after a careful evaluation of the oral and documentary evidence.
Crl.R.P. No. 2824/2010 : 2 :
This Court sitting in the rarefied revisional jurisdiction will be
loath to interfere with the findings of fact recorded by the Courts
below concurrently. 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.
5. What now survives for consideration is the legality of
the sentence imposed on the revision petitioners. No doubt, now
after the decision of the Apex Court in Vijayan v. Sadanandan
K. and Another (2009) 6 SCC 652 it is permissible for the
Court to slap a default sentence of imprisonment while
awarding compensation under Sec. 357 (3) Cr.P.C. But, in that
event, a sentence of imprisonment will be inevitable. I am,
however, of the view that in the facts and circumstances of this
case a sentence of fine with an appropriate default sentence
will suffice. Accordingly, for the conviction under Section 138 of
the Act the 2nd revision petitioner is sentenced to pay a fine of
`1,13,000/- (Rupees one lakh and thirteen thousand only).
The said fine shall be paid as compensation under Section 357 (1)
Cr.P.C. The 2nd revision petitioner is permitted either to deposit
the said fine amount before the Court below or directly pay the
compensation to the complainant within nine months from today
and produce a memo to that effect before the trial Court in case of
Crl.R.P. No. 2824/2010 : 3 :
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 petitioners.
Dated this the 1st day of December, 2010.
V. RAMKUMAR, JUDGE.
rv