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Kerala High Court
B.H.Ravi vs B.Ibrahim Haji on 17 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3812 of 2010()


1. B.H.RAVI, AGED 45 YEARS,
                      ...  Petitioner

                        Vs



1. B.IBRAHIM HAJI, AGED 68 YEARS,
                       ...       Respondent

2. THE STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.JAWAHAR JOSE

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :17/12/2010

 O R D E R
                           V.RAMKUMAR, J.
                 .................................................
                    Crl.R.P. No. 3812 of 2010
                 ................................................
                        Dated: 17-12-2010

                                 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.

179 of 2009 on the file of the J.F.C.M. II (Addl. Munsiff,

Kasaragod) 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 ` 1,05,000/-. The

fine/compensation ordered by the lower appellate court is `

1,05,000/-.

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 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

Crl.R..P. No. 3812 of 2010 -:2:-

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 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 ` 1,08,000/-. (Rupees one lakh eight

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

Crl.R..P. No. 3812 of 2010 -:3:-

compensation to the complainant within six 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 17th day of December, 2010.

Sd/-V. RAMKUMAR, JUDGE.

ani/-                         /true copy/


                                   P.S. to Judge


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