IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 3745 of 2010 ----------------------------------------- CRL.A.NO.495/2009 OF ADDITIONAL SESSIONS COURT (ADHOC) III, PALAKKAD, ST.NO.3759/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- RAJESWARI, AGED 46 YEARS, W/O. PRADEEP, RAILWAY QUARTERS NO.3720, HOSPITAL COLONY, KALLEKULANGARA, OLAVAKKODE, PALAKKAD. BY ADV. SRI.JOHNSON VARIKKAPPALLIL. RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT: --------------------------------------------------------------------------------------- 1. C.J. OMANA, D/O. JOSEPH, CHUNGATHU HOUSE, KALLEKULANGARA, AKATHETHARA, PALAKKAD, PIN – 678 001. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.RAMKUMAR, J. = = = = = = = = = = = = = = = = Crl.R.P.No.3745 of 2010 = = = = = = = = = = = = = = = = Dated this the 10 th 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 S.T.No.3759/2008 on the file of the J.F.C.M-III, Palakkad challenges the conviction entered and the sentence passed against her for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). The cheque amount was `60,000/- (Rupees sixty thousand only). The compensation ordered by the lower appellate court is `65,000/-(Rupees sixty five thousand only). 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 Crl.R..P. No.3745 /2010 -:2:- that the Revision Petitioner/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 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 Crl.R..P. No.3745 /2010 -:3:- petitioner is sentenced to pay a fine of `65,000/-(Rupees sixty 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 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 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. The petitioner shall be released from prison unless her continued detention is found necessary in connection with any other case. However, her release shall be subject to her liability to pay the above said amount. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. Dated this the 10th day of December, 2010. V. RAMKUMAR, JUDGE. Registry shall communicate this order to the Superintendent of the prison where the petitioner is detained provided details of the prison are furnished to the Registry. sj