IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3580 of 2010()
1. G.RAGHAVAN NAIR, SENIOR ACCOUNTANT,
... Petitioner
Vs
1. JALAJAMBIKA, AMIBKA BHAVAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.V.PHILIP MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :02/12/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 3580 of 2010
................................................
Dated: 2nd December, 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 S.T. No. 871 of 2006 on the file of the J.F.C.M.
IX, Thiruvananthapuram 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 `
3,00,000/-. The fine/compensation ordered by the lower
appellate court is ` 3,05,000/-.
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 Petitioner/accused failed to make the
Crl.R..P. No. 3580 of 2010 -:2:-
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 ` 3,07,000/-. (Rupees three lakh
seven 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
Crl.R..P. No. 3580 of 2010 -:3:-
before the Court below or directly pay the 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.
6. The petitioner shall be released from prison
unless his continued detention is found necessary in
connection with any other case. However, his release shall
be subject to his liability to pay the above said amount.
7. In the result, this Revision is disposed of confirming
the conviction entered but modifying the sentence imposed on
the revision petitioner.
Dated this the 2nd day of December, 2010.
Sd/-V. RAMKUMAR, JUDGE.
ani/-
Registry shall communicate this order to the Superintendent of
the prison where the petitioner is detained provided details of the
prison are furnished to the Registry.
/true copy/
P.S. to Judge