IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3273 of 2010()
1. M/S.EVERLAST APPERALS,SWAGATH BUILDINGS,
... Petitioner
2. KHALEEL SIDHEEK,MANAGING PARTNER,
Vs
1. HAMSA,S/O.CHERIYA KUNHAYAMMU,
... Respondent
2. STATE OF KERALA,REPRESENTED BY PUBLIC
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. 3273 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.
394 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
Crl.R.P. No. 3273/2010 : 2:
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 the 2nd revision petitioner is sentenced to pay a fine of
`1,13,000/- (Rupees one lakh and thirteen thousand only).
Crl.R.P. No. 3273/2010 : 3:
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
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