IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 Crl.Rev.Pet.No. 497 of 2010() ----------------------------- CRA.531/2009 of ADDL. SESSIONS COURT (ADHOC-II), ERNAKULAM CC.815/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONERS/APPEALLANTS/ACCUSED 1 & 2:- ----------------------------------------------------------- 1. M/S.HOUSE OF YESUDAS REP BY PROPRIETOR, NASSAR CHERIYIL, AGED 48 YEARS S/O.C.A.ABU, BASTIN ROAD, FORT KOCHI,KOCHI-1 2. MR. NASSAR CHERIYIL, AGED 48 YEARS S/O.C.A.ABU, PROPRIETOR, M/S. HOUSE OF YESUDAS, BASTIN ROAD, FORT KOCHI, KOCHI-1 BY ADV. SRI.VARGHESE.J.PUNNACHALIL RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:- ------------------------------------------------------------------ 1. M/S.CHILTON REFRIGERATION PVT LTD CHILTON TOWERS, N.H.47, EDAPPALLY PO, REP BY CHILPRAKASH, MANAGING DIRECTOR. 2. STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV. MR. P.A. SALIM, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ====================== Crl.R.P. No. 497 of 2010 ====================== Dated, this the 15th day of February, 2010. O R D E R In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioners who were the 1st and 2nd accused in C.C. No.815 of 2007 on the file of the Judicial First Class Magistrate-II, Kochi, 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.1,18,875/-. The fine/compensation ordered by the lower appellate court is also Rs.1,18,875/-. 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. 497/2010 -: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 Rs. Crl.R..P. No. 497/2010 -:3:- 1,23,000/- (Rupees one lakh and twenty three thousand only). 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 they fails to deposit or pay the said amount within the aforementioned period, the 2nd 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 petitioner. Dated this the 15th day of February, 2010. V. RAMKUMAR, JUDGE. rv