IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 Crl.Rev.Pet.No. 1252 of 2010() ------------------------------ STC.1456/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD CRL.A. NO. 457/2008 & CRL.R.P.NO. 86/2008 of SESSIONS COURT, PALAKKAD .................... REVN. PETITIONER/APPELLANT/ACCUSED:- ------------------------------------------------ C.M.MUTHAPPA, AGED 45 YEARS, S/O.C.P.MEERANKUTTY, CHERANADU, ERIMAYOOR.P.O, PALAKKAD. BY ADV. MR. K.MOHANAKANNAN MS. A.R.PRAVITHA MS. D.S.THUSHARA RESPONDENT/RESPONDENTS/COMPLAINANT & STATE:- --------------------------------------------------------------- U.SALIM, C/O.PLAZA GROUP, NO.14, SOBHA BUILDING, COIMBATORE ROAD, PALAKKAD. ADV. MR. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/04/2010, ALONG WITH CRL.R.P.NO. 1268/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ====================== Crl.R.P. Nos. 1252 & 1268 of 2010 ====================== Dated, this the 9th day of April, 2010. O R D E R In these Revision Petitions filed under Section 397 read with Sec. 401 Cr.P.C. the common revision petitioner who was the accused in S.T.C. No.1456 of 2006 on the file of the Judicial First Class Magistrate-III, 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'). The cheque amount was Rs.4,70,000/-. The fine/compensation ordered by the trial court was Rs.2,00,000/-. Aggrieved by the conviction and sentence the revision petitioner filed an appeal before the Sessions Court, Palakkad as Crl. Appeal No. 457 of 2008. Aggrieved by the reduction of the compensation amount, the complainant filed Crl. R.P. No. 86 of 2008 before the Sessions Court. As per common order dated 19.12.2009, the Sessions Court dismissed the appeal but allowed the Crl.R..P. Nos.1252 & 1268 of 2010 -:2:- revision enhancing the quantum of compensation. The compensation awarded by the lower appellate court is Rs.4,70,000/-. Hence these revisions. 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor. 3. The learned counsel appearing for the Revision Petitioner 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 petitioner 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 that the Revision Petitioner/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 petitioner 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 Crl.R..P. Nos.1252 & 1268 of 2010 -:3:- 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 petitioner. I fully agree with the conclusion reached by the Sessions Court in enhancing the compensation to make it equal to the cheque amount. 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 petitioner is sentenced to pay a fine of Rs.4,75,000/- (Rupees four lakhs and seventy five thousand only). The said fine shall be paid as Crl.R..P. Nos.1252 & 1268 of 2010 -:4:- 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 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, these Revisions are disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. Dated this the 9th day of April, 2010. V. RAMKUMAR, JUDGE. rv