IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 3341 of 2010() ------------------------------------ (CRL.A.NO.631/2008 OF ADDL. SESSIONS COURT (FAST TRACK II) ALAPPUZHA C.C.NO.500/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, AMBALAPPUZHA) ............. PETITIONER(S)/APPELLANTS/ACCUSED ------------------------------------------------ 1. SUBASH BABU, S/O.PURUSHOTHAMAN, THOPPIL (H), THOTTAPPALLY P.O., ALAPPUZHA. 2. GANGADHARAN, S/O. RAMAN, KAMBIYIL (H), THOTTAPPALLY P.O., ALAPPUZHA. BY ADVS. SMT.P.V.SREELATHA SMT.JYOTHI JOSEPH RESPONDENT(S)/ RESPONDENTS/COMPLAINANT --------------------------------------------------------- 1. PUSHPA G., PUTHENPURAKLKAL (H), THOTTAPPALLY P.O., ALAPPUZHA - 688 663. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, ALAPPUZHA. R1 BY ADV. SMT.S.SUJINI R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ V.RAMKUMAR, J. -------------------------------------- Crl.R.P.No. 3341 of 2010 ---------------------------------------- Dated this the 30th day of November, 2010 ORDER In this Revision Petition filed under Section 397 read with Section 401 Cr.P.C., petitioners who were the accused in C.C. No.500 of 2007 on the file of the Judicial First Class Magistrate, Ambalapuzha 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 `2,00,000/-. The fine/compensation ordered by the courts below is `10,000/- each. 2. I heard the learned counsel for the Revision Petitioners and the learned Public Prosecutor. 3. The learned counsel appearing for the Revision Petitioners 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 petitioners 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. 3341/2010 : 2 : that the Revision Petitioners/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 petitioners 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 petitioners. In the light of the decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya - 2008 (1) KLT 851 default sentence cannot be imposed for the enforcement of an order for compensation under Sec.357 (3) Cr.P.C. I am, therefore, inclined to modify the sentence to one of fine only. Accordingly, for the conviction under Section 138 of the Act the revision petitioners are sentenced to pay a fine of ` 2,05,000/- Crl.R.P. No. 3341/2010 : 3 : (Rupees two lakhs and five thousand only). Each of them will have to pay `1,02,500/-. The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioners are permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within six months from today and produce a memo to that effect before the trial Court in case of direct payment. If any one of them fails to deposit or pay the said amount within the aforementioned period the defaulting petitioner 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. Dated this the 30th day of November, 2010. V. RAMKUMAR, JUDGE. rv