IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3671 of 2010()
1. VALSAMMA
... Petitioner
Vs
1. K.C.OOMMEN AND ANOTHER
... Respondent
For Petitioner :SRI.AJITH MURALI
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :06/12/2010
O R D E R
V.RAMKUMAR, J.
.................................................
Crl.R.P. No. 3671 of 2010
................................................
Dated: 6th 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. 752 of
2006 on the file of the J.F.C.M. Chengannur, 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 `
1,31,500/-. The fine/compensation ordered by the lower appellate
court is ` 1,35,000/-.
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 within 15 days of
Crl.R..P. No. 3671 of 2010 -:2:-
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 ` 1,37,000/- . (Rupees one lakh
thirty seven 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 to the complainant within seven
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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 6th day of December, 2010.
.
Sd/-V. RAMKUMAR, JUDGE.
ani/-
/true copy/
P.S. to Judge