ELDHO Vs. SHEEBA

JUDGEMENT

(1.) IN this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. petitioners who were the accused in C.C. No. 95 of 2008 on the file of the Judicial First Class Magistrate-II, Perumbavoor challenge the conviction entered and the sentence passed against them for an offence punishable under Sec. 138 of the Negotiable INstruments Act, 1881 (hereinafter referred to as 'the Act'). The cheque amount was Rs. 89,000/-. The fine/compensation ordered by the lower appellate court is Rs. 89,000/- to the 1st accused and Rs. 5000/- to the 2nd accused.

(2.) I heard the learned counsel for the Revision Petitioners and the learned Public Prosecutor.

(3.) WHAT now survives for consideration is the legality of the sentence imposed on the revision petitioners. 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 casea sentence of fine with an appropriate default sentence will suffice. Accordingly, for the conviction under Section 138 of the Act the 1st revision petitioner is sentenced to pay a fine of Rs. 94,000/- (Rupees ninety four thousand only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The 1st revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation 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 he fails to deposit or pay the said amount within the aforementioned period the 1st revision petitioner shall suffer simple imprisonment for three months by way of default sentence. The fine imposed on the 2nd accused/2nd petitioner is not interfered with.