IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 80 of 2011()
1. K.S.ABDUL MAJEED SAHIB
... Petitioner
Vs
1. ANILKUMAR
... Respondent
For Petitioner :SRI.ARUN.B.VARGHESE
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :10/01/2011
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 80 of 2011
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Dated this the 10th day of January, 2011
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. 5
of 2008 on the file of the J.F.C.M. II, Ranny, 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 ` 1,00,000/-. The fine/compensation ordered by
the lower appellate court is ` 1,00,000/-.
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
Crl.R..P. No. 80 of 2011 -:2:-
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) 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
Crl.R..P. No. 80 of 2011 -:3:-
Act the revision petitioner is sentenced to pay a fine of `
1,10,000/-. (Rupees one lakh ten 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 from today
and produce a memo to that effect before the trial Court in case of
direct payment. If she fails to deposit or pay the said amount
within the aforementioned period she 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 10th day of January, 2011.
Sd/-V. RAMKUMAR, JUDGE.
ani/-
/true copy/
P.S. to Judge