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
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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
