Posted On by &filed under High Court, Kerala High Court.

Kerala High Court
Jijeesh E.C vs T.Mani on 17 December, 2010




Crl.Rev.Pet.No. 3462 of 2010()

                      ...  Petitioner


                       ...       Respondent


                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.



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