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Shiju Muhammed vs M/S. Wipro Limited on 22 December, 2010

Kerala High Court
Shiju Muhammed vs M/S. Wipro Limited on 22 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3886 of 2010()


1. SHIJU MUHAMMED, PROPRIETOR,
                      ...  Petitioner

                        Vs



1. M/S. WIPRO LIMITED, C/O.KERALA ROADWAYS
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.R.MANOJ

                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. 3886 of 2010
                 ................................................
       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. the petitioner who was the accused in C.C. No.

531 of 2009 on the file of the Judicial First Class Magistrate -IV,

Ernakulam 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 `1,42,234/- The

fine/compensation ordered by the lower appellate court is

`1,45,000/-.

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. 3886/2010 -: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

`1,52,000/- (Rupees one lakh fifty two 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

Crl.R..P. No. 3886/2010 -:3:-

said fine amount before the Court below or directly pay the

compensation to the complainant within six 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 petitioner.

Dated this the 22nd day of December, 2010.

V. RAMKUMAR, JUDGE.

rv

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