IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2274 of 2009()
1. M/S.TRANS INDIA CONSTRUCTIONS,
... Petitioner
2. SATHESH NAIR,MANAGING PARTNER,
Vs
1. G.K.G.PANICKER,THAMARASSERIL HOUSE,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.M.R.SARIN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :02/12/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P.No.2274 of 2009
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Dated this the 2nd day of December, 2010
O R D E R
In this Revision Petition filed under Section 397 read with
Sec. 401 Cr.P.C. the petitioners, who were the accused in
C.C.No.70/2006 on the file of the J.F.C.M-II, Haripad, challenge
the conviction entered and the sentence passed against the 2nd
petitioner for an offence punishable under Sec.138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the
Act’). The cheque amount was `3,75,000/- (Rupees three lakhs
seventy five thousand only). The compensation ordered by the
lower appellate court is `3,75,000/- (Rupees three lakhs seventy
five thousand only).
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.
Crl.R..P. No.2274/ 2009 -:2:-
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. 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 2nd 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
Crl.R..P. No.2274/ 2009 -:3:-
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 petitioners are
sentenced to pay a fine of `3,85,000/- (Rupees three lakhs
eighty five thousand only). The said fine shall be paid as
compensation under Section 357 (1) Cr.P.C. 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 7 months from today and produce a memo to
that effect before the trial Court in case of direct payment. If
they fail to deposit or pay the said amount within the
aforementioned period the 2nd petitioner 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 2nd day of December, 2010.
V. RAMKUMAR, JUDGE.
sj