IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 Crl.Rev.Pet.No. 328 of 2008() ----------------------------- CRA.146/2006 of II ADDL. SESSIONS COURT, PALAKKAD STC.542/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------- P.P. CHANDRAN, S/O. PONNAN, AGED 55 YEARS, POONDAYIL HOUSE, (KUNNASSERY) WEST KALLARANCHI LAKSHAM VEEDU COLONY, THENUR POST, PARLI, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------- 1. A.B. SIVADAS, S/O. M.K. BALAKRISHNAN, AGED 58 YEARS, KADUNAGATTUKULAM EZHAKKAD P.O., PALAKKAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. K.S. SIVAKUMAR, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07.02.2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ............................................................... Crl.R.P. No. 328 of 2008 ............................................................... Dated, this the 7th day of February,2008. O R D E R In this Revision filed under Section 397 read with Sec. 401 Cr.P.C. the petitioner who was the accused in S.T.C. No. 542 of 2004 on the file of the Judicial First Class Magistrate-II, Palakkad challenges the conviction entered and the sentence passed against him for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor and also the learned counsel for the complainant. 3. The learned counsel appearing for the Revision Petitioner re-iterated the contentions in support of the Revision. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant on the drawee bank, that the cheque was validly CRL. R.P.NO. 328/2008 -:2:- presented to the bank, that it was dishonoured for reasons which fall under Section 138 of the Act, that the complainant made a demand for payment by a notice in time in accordance with clause (b) of the proviso to Section 138 of the Act and that the Revision Petitioner/accused failed to make the payment within 15 days of receipt of the statutory notice. 4. The learned counsel appearing for the revision petitioner made the following further submissions before me:- The definite stand taken by the accused is one of denial of the alleged borrowal of Rs.70,000/- on 01.09.2003 as alleged by the complainant. Even if the accused has not succeeded in substantiating the defence put forward by him, that will not absolve the complainant from discharging the initial burden on him. The bank manager examined as DW2 has deposed that there has been no transaction in the account of the accused from 08.03.1996 onwards. His contention is that he had only borrowed a sum of Rs/ 15,000/- from the complainant in the year 1993 and he had given the cheque in question as a signed blank cheque by way of security. CRL. R.P.NO. 328/2008 -:3:- 5. Both the courts have not accepted the above defence set up by the petitioner. If he had borrowed only Rs.15,000/- in the year 1993 and Ext.P1 cheque was given as a signed blank cheque by way of security and if he had discharged his liablity, then as a reasonable and prudent man, one would have expected him to take back the cheque from the complainant. That has not been done and no convincing reason has been given for his failure to do so. The courts below have considered his defence and have found against the same. The said finding is a pure finding on fact on the basis of the allegation of the oral and documentary evidence in the case. This Court sitting in revision will be loath to interfere with the said findings. 6. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the above finding. The said finding has been recorded on an appreciation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the finding so recorded concurrently by the courts below. The conviction was thus rightly entered against the petitioner. CRL. R.P.NO. 328/2008 -:4:- 7. What now survives for consideration is the question as to whether what should be the proper sentence to be imposed on the revision petitioner. Having regard to the facts and circumstances of the case, I am inclined to modify the sentence imposed on the revision petitioner. In the light of the recent decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya rendered on 3-8-2007 in Crl.Appeal 1013 of 2007, default sentence cannot be imposed for the enforcement of an order for compensation under Sec. 357 (3) Cr.P.C. Accordingly, for the conviction under Section 138 of the Act the revision petitioner is sentenced to pay a fine of 70,000/- (Rupees seventy thousand only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioner is 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 he fails to deposit or pay the said amount within CRL. R.P.NO. 328/2008 -:5:- 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 petitioner. V. RAMKUMAR, JUDGE. rv