IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3891 of 2010()
1. M/S.AISWARYA FINANCE AND OTHERS
... Petitioner
Vs
1. DR.SAJEEV AND ANOTHER
... Respondent
For Petitioner :SRI.C.HARIKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :22/12/2010
O R D E R
V.RAMKUMAR, J.
.................................................
Crl.R.P. No. 3891 of 2010
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Dated this the 22nd 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.
1175 of 2004 on the file of the Judicial First Class Magistrate,
Chavakkad 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 `1,28,000/-. The
fine/compensation ordered by the lower appellate court is `5000/-
to the 1st accused and `65,000/- to 2nd and 3rd accused
each.
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
Crl.R..P. No. 3891/2010 -:2:-
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. 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 revision petitioners 2 and 3 are sentenced to pay a fine of
`68,000/- (Rupees sixty eight thousand only) each. The said
fine shall be paid as compensation under Section 357 (1) Cr.P.C.
Crl.R..P. No. 3891/2010 -:3:-
The revision petitioners are permitted either to deposit the said
fine amount before the Court below or directly pay the
compensation to the complainant within five months from today
and produce a memo to that effect before the trial Court in case of
direct payment. If they fails to deposit or pay the said amount
within the aforementioned period revision petitioners 2 and 3 shall
suffer simple imprisonment for three months by way of default
sentence. The fine amount of `5000/- imposed on the 1st accused
is not interfered with.
In the result, this Revision is disposed of confirming the
conviction entered but modifying the sentence imposed on the
revision petitioners.
Dated this the 22nd day of December, 2010.
V. RAMKUMAR, JUDGE.
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