EVERLAST APPERALS Vs. HAMSA

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. 394 of 2003 on the file of the Judicial First Class Magistrate, Mannarkkad 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.1,00,000/-. The fine/compensation ordered by the lower appellate court is Rs.1,10,000/-.

(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 case a sentence of fine with an appropriate default sentence will suffice. Accordingly, for the conviction under Section 138 of the Act the 2nd revision petitioner is sentenced to pay a fine of Rs.1,13,000/- (Rupees one lakh and thirteen thousand only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The 2nd revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within nine 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 petitioners.