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 `
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
Dated this the 17th day of December, 2010.
Sd/-V. RAMKUMAR, JUDGE.
ani/- /true copy/ P.S. to Judge