Jayakrishnan.C. vs State Of Kerala on 1 December, 2010

Kerala High Court
Jayakrishnan.C. vs State Of Kerala on 1 December, 2010




Crl.Rev.Pet.No. 3458 of 2010()

                      ...  Petitioner


                       ...       Respondent


                For Petitioner  :SRI.T.K.SANDEEP

                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.3458 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 petitioner, who was the accused in

S.T.No.1586/2007 on the file of the J.F.C.M-I, 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 `50,000/- (Rupees fifty

thousand only). The compensation ordered by the lower

appellate court is ` 60,000/- (Rupees sixty 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.

Crl.R..P. No. 3458/2010 -:2:-

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 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)

Crl.R..P. No. 3458/2010 -: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 `62,000 (Rupees sixty

two 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 compensation to the

complainant within 4 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 1st day of December, 2010.



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