IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2140 of 2010()
1. S.KOMALAM, D/O.SARASWATHY AMMA,
... Petitioner
Vs
1. K.NATESAN AHCARY, S/O.KOLAPPAN ACHARY,
... Respondent
2. THE STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.SHAJIN S.HAMEED
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :01/12/2010
O R D E R
V.RAMKUMAR, J.
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Crl.R.P. No. 2140 of 2010
................................................
Dated: 1st December, 2010
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. 332 of 2005 on the file of the J.F.C.M.
VII, Thiruvananthapuram, . 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 ` 80,000/-.
The fine/compensation ordered by the lower appellate court is
` 80,000/-.
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
that the Revision Petitioner/accused failed to make the payment
Crl.R..P. No. 2140 of 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
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 Act the revision petitioner is sentenced to pay a fine of
` 85,000/-. (Rupees eighty five 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
Crl.R..P. No. 2140 of 2010 -:3:-
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 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 day 1st day of December, 2010.
Sd/-V. RAMKUMAR, JUDGE.
ani/- /true copy/
P.S. to Judge