High Court Kerala High Court

Khaleel Sidheek vs Hamsa on 1 December, 2010

Kerala High Court
Khaleel Sidheek vs Hamsa on 1 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2824 of 2010()


1. KHALEEL SIDHEEK, MANAGING PARTNER,
                      ...  Petitioner

                        Vs



1. HAMSA, S/O.CHERIYA KUNHAYAMMU,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.P.VIJAYA BHANU (SR.)

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :01/12/2010

 O R D E R
                                V.RAMKUMAR, J.
                     .................................................
                         Crl.R.P. No. 2824 of 2010
                      ................................................
              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., petitioners who were the accused in C.C. No.395 of 2003 on the file

of the Judicial First Class Magistrate, Mannarkkad challenge the conviction

entered and the sentence passed against them 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 `1,10,000/-.

2. I heard the learned counsel for the Revision Petitioners and the

learned Public Prosecutor.

3. The learned counsel appearing for the Revision Petitioners 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 petitioners 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 Petitioners/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

petitioners while entering the conviction. The said conviction has been

recorded after a careful evaluation of the oral and documentary evidence.

Crl.R.P. No. 2824/2010 : 2 :

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 petitioners. 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 2nd revision petitioner is sentenced to pay a fine of

`1,13,000/- (Rupees one lakh and thirteen thousand only).

The said fine shall be paid as compensation under Section 357 (1)

Cr.P.C. The 2nd revision petitioner is permitted either to deposit

the said fine amount before the Court below or directly pay the

compensation to the complainant within nine months from today

and produce a memo to that effect before the trial Court in case of

Crl.R.P. No. 2824/2010 : 3 :

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 petitioners.

Dated this the 1st day of December, 2010.

V. RAMKUMAR, JUDGE.

rv