IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 Crl.Rev.Pet.No. 2166 of 2009() ------------------------------ CRA.408/2007 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM ST.311/2005 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... REVN. PETITIONER(S): 1ST RESPONDENT/COMPLAINANT: ------------------------------------------------ M/S.PENINSULAR MULTI COMEX SERVICES LTD., REGISTERED OFFICE AT S.T.REDDIAR AND SONS BUILDING, II ND FLOOR, VEEKSHANAM ROAD ERNAKULAM REPRESENTED BY ITS LEGAL OFFICER ABDUL KAREEM. BY ADV. SRI.K.N.BONEY ANTONY CORREYA RESPONDENT(S): --------------- 1. P.V.JOSE, AGED 50, PROPRIETOR, M/S.PULIKAYATH RUBBERS, PULIKAYATH HOUSE P.O.PARIKANNY, KOTHAMANGALAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/03/2010, ALONG WITH CRRP NO. 2185 OF 2009 CRRP NO. 2186 OF 2009 CRRP NO. 2187 OF 2009 CRRP NO. 2188 OF 2009 CRRP NO. 2189 OF 2009 CRRP NO. 2190 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. Nos. 2166,2185,2186,2187, 2188,2189 and 2190 of 2009 * * * * * * * * * * * * * * * * * * Dated, this the 2nd day of March, 2010 ORDER The common complainant in S.T. Case Nos. 311,332,330,329,309,307 & 308 of 2005 on the file of the J.F.C.M. III, Kochi is the common revision petitioner herein. All these cases were prosecutions under Sec. 138 of the Negotiable Instruments Act, 1881 (the N.I. Act for short). 2. All the above cases ended in conviction by the learned Magistrate who imposed a sentence of simple imprisonment for one month besides the cheque amount as compensation under Sec. 357 (3) Cr.P.C. with a default sentence of simple imprisonment for twenty days. Aggrieved by the conviction entered and the sentence passed, the common accused filed Crl. Appeal Nos. 408, 411, 410,409,402,400,401of 2007 before the Sessions Court, Crl.R.P. Nos. 2166,2185,2186,2187, 2188,2189 and 2190 of 2009 -:2:- Ernakulam. All these appeals were disposed of by a common judgment dated 11-3-2009 by the Addl. Sessions Court (Adhoc-I), Ernakulam. The conviction of the common accused in all the 7 cases was confirmed. But the sentence was modified reducing the imprisonment to imprisonment till rising of the court and directing the accused to pay the cheque amounts as compensation without any default sentence. It is aggrieved by the modified sentence passed by the lower appellate court that the common complainant in all these 7 cases has filed these revisions. 3. The first respondent/accused has been duly served in all these cases. But he has not chosen to enter appearance. 4. The lower appellate court has not been alive to the necessity of imposing a default sentence in cases where compensation under Sec. 357 (3) Cr.P.C. has been ordered. All these cases arose after the amendment of the N.I.Act, 1881 with effect from 6-2-2003. Hence, by virtue of the proviso Crl.R.P. Nos. 2166,2185,2186,2187, 2188,2189 and 2190 of 2009 -:3:- to Section 143 of the said Act notwithstanding anything contained in the Code of Criminal Procedure, the Magistrate was entitled to impose a fine exceeding Rs. 5,000/- which was the outer limit under Section 29 of the Cr.P.C. at the relevant time. The lower appellate court could have either reduced the duration of the imprisonment and ordered the cheque amount to be paid as fine with an appropriate default sentence. or in the alternative, the lower appellate court had the jurisdiction to impose a default sentence for an order for compensation under Section 357 (3) Cr.P.C. in the light of the recent decision of the Apex Court in Vijayan v. Sadanandan - 2009 (2) KLT 618 (SC). In fact, in Sugandhi v. Jagadeesan - AIR 2002 SC 681 = 2002 (1) KLT 581 a two Judge Bench of the Apex Court had held that unless and until Hari Kishan and State of Haryana v. Sukhbir Singh and Others - AIR 1988 SC 2127 is overurled by a larger Bench, the law laid down by the Supreme Court that default sentence can be imposed for Crl.R.P. Nos. 2166,2185,2186,2187, 2188,2189 and 2190 of 2009 -:4:- enforcing an order for compensation under Section 357 (3) Cr.P.C. will hold the field. Hence, the lower appellate court was not right in not imposing a default sentence. Hence, the sentence imposed by the lower appellate court is modified by directing that on default to pay the compensation amount, the first respondent/accused shall undergo simple imprisonment for one month by way of default sentence in each of these cases. The rest of the sentence imposed by the lower appellate court shall stand unaffected. These Revisions are allowed as above. V. RAMKUMAR, (JUDGE) ani.