IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 Crl.Rev.Pet.No. 1111 of 2009() ------------------------------ CRA.386/2003 of ADDL.SESSIONS COURT, THALASSERY ST.890/1994 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... REVN. PETITIONER(S): ----------------------------------- T.SAMUEL THACHAN, S/O. MATHAI, NEAR ROMAN CHATHOLIC CHURCH P.C. MADAI, KANNUR DISTRICT. BY ADV. SRI.T.P.PANKAJAKSHAN RESPONDENT(S): ------------------------------ 1. KUNHIRAMAN, S/O. APPA, ADUTHILA, KOYAKKAL HOUSE, P.O. PAYYANGADI, KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. = = = = = = = = = = = = = == = = Crl.R.P. No.1111 of 2009 = = = = = = = = = = = = = = = = = Dated, this the 6th day of April, 2009 O R D E R In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioner who was the accused in S.T.C.No.890 of 1994 on the file of the J.F.C.M, Payyannur 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.48,000/-. The compensation ordered by the lower appellate court is Rs.55,000/- 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor. 3. The learned counsel appearing for the Revision Petitioner /accused made the following submissions before me in support of the revision:- The entire transaction involved in this case is against the public policy of our country. Even according to the complainant, Crl.R..P. No.1111/09 -:2:- money was received by the accused pursuant to an agreement for procuring a visa of another country. It is against the public policy. Therefore, consideration for the cheque is hit by Section 23 of the Contract Act. The prosecution based on the cheque was therefore ill conceived. The petitioner relies on the decision N.V.P.Pandian v. M.M.Roy (AIR 1979 Madras 42). 4. I am afraid that I cannot agree with the above submissions. Even if the purpose for which the amount was obtained by the accused is opposed to public policy, both the courts have accepted the complaint's contention that the sum of Rs.45,000/- was extracted by the revision petitioner for the purpose of securing a visa to the son of the complainant and thereafter when the complainant's son went to Gulf using the visa given by the accused it was found to be a fake one and then the complainant's son had to be remained in Jail and subsequently the matter was discussed and the accused gave a cheque as a measure of returning the amount obtained from the complainant. Thus, eventhough the purpose for which the amount was extracted by the accused is illegal, subsequently by issuing the cheque he was really agreeing to disgorge the ill gotten gains retained by him. Hence, the consideration for the cheque is not tainted with any illegality Crl.R..P. No.1111/09 -:3:- vide Saseendra Varma Raj E.K. v. State of Kerala and another 2008(3) KHC. I, therefore, do not find any force in the submissions made on behalf of the revision petitioner. 5. 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. 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. 6. What now survives for consideration is the legality of 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 - 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, Crl.R..P. No.1111/09 -:4:- 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.60,000/- (Rupees sixty 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 four 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, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. Dated this the 6h day of April, 2009. V. RAMKUMAR, JUDGE. sj