IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3462 of 2010()
1. JIJEESH E.C.,
... Petitioner
Vs
1. T.MANI, S/O.VASU,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.NIRMAL. S
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. 3462 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. 359 of
2008 on the file of the J.F.C.M. III, Kozhikode 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 `
1,50,000/-. The fine/compensation ordered by the lower
appellate court is ` 1,50,000/-.
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 payment within 15 days of
Crl.R..P. No. 3468 of 2010 -:2:-
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 ` 1,55,000/-. (Rupees one lakh fifty
five 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 six months
Crl.R..P. No. 3468 of 2010 -:3:-
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.
V. RAMKUMAR, JUDGE.
ani/-
