IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3536 of 2010()
1. K.V.NARAYANAN,AGED 48,S/O.K.VELU,
... Petitioner
2. K.K.SATHEESH,S/O.KUNJU, CHERAMANGALAM,
Vs
1. THE STATE OF KERALA,REP.BY THE PUBLIC
... Respondent
2. P.V.K.UNNI NAIR, S/O.KUNJIMALU NESSIAR,
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
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.3536 of 2010
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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. the petitioners, who were accused Nos.1 and 2
in C.C.No.67/2002 on the file of the J.F.C.M, Wadakkencherry,
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 `65,000/- (Rupees sixty five
thousand only). The compensation ordered by the lower
appellate court is `65,000/- (Rupees sixty five thousand only).
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.
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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. 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)
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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 revision
petitioners are sentenced to pay a fine of `70,000/- (Rupees
seventy thousand only) (`35,000/- each). The said fine shall be
paid as compensation under Section 357 (1) Cr.P.C. The
revision petitioners are permitted either to deposit the said fine
amount before the Court below or directly pay the compensation
to the complainant within 5 months from today and produce a
memo to that effect before the trial Court in case of direct
payment. If they fail to deposit or pay the said amount within
the aforementioned period they 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.
sj