IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 134 of 2011()
1. BAKTHAVALSALAN @ BABU,
... Petitioner
Vs
1. SANTHOSH, S/O.MOHANAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY PUBLIC
For Petitioner :SRI.P.K.MOHANAN(PALAKKAD)
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :14/01/2011
O R D E R
V.RAMKUMAR, J.
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Crl.R.P.No.134 of 2011
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Dated this the 14th day of January, 2011
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
S.T.No.756/2008 on the file of the Chief Judicial Magistrate,
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 `1,80,000/- (Rupees one
lakh eighty thousand only). The compensation ordered by the
lower appellate court is `1,81,000/- (Rupees one lakh eighty
one thousand only).
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.
4. The courts below have concurrently held that the
cheque in question was drawn by the petitioner in favour of the
Crl.R..P. No.134 /2011 -:2:-
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. 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 petitioner. 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
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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
petitioner is sentenced to pay a fine of `1,85,000/- (Rupees
one lakh eighty five 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 7 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.
In the result, this Revision is disposed of confirming the
conviction entered but modifying the sentence imposed on the
revision petitioner.
Dated this the 14th day of January, 2011.
V. RAMKUMAR, JUDGE.
sj