IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 Crl.Rev.Pet.No. 927 of 2009() ----------------------------- CRA.58/2005 of ADDL. DISTRICT & SESSIONS JUDGE, FAST TRACK COURT-I, THIRUVANANTHAPURAM CC.37/2004 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), THIRUVANANTHAPURAM .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED: ---------------------------------------- 1. M/S.MALAYALAM EDIBLE INDIA LTD., REPRESENTED BY ITS MANAGING DIRECTOR, MATHEWS MANUEL, NO.7/332, KOZHUVANAL, KEZHUVAMKULAM P.O., PALA, KOTTAYAM-686 584. 2. MATHEWS MANUEL, MANAGING DIRECTOR, MALAYALAM EDIBLE INDIA LTD.NO.7/332, KOZHUVANAL, KEZHUVAMBKULAM P.O., PALA, KOTTAYAM-686 584. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------- 1. KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD., REGISTERED OFFICE AT KESTON ROAD, KOWDIAR, THIRUVANANTHAPURMA, REPRESENTED BY ITS SENIOR GRADE ASSISTANT (LEGAL) S.YASODHARA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI.JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No. 927 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 16th day of March, 2009 O R D E R In this revision petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioners who were accused 1 and 2 in C.C. No.37/2004 on the file of the Judicial Magistrate of First Class-IV (Mobile), Thiruvananthapuram challenge the conviction entered and the sentence passed against the revision petitioners for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). The cheque amount was Rs.1,60,000/-.The compensation ordered by the lower appellate court is Rs.1,61,000/-. 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. 927/09 -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 the matter 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. 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 a recent decision of the Supreme Court in Ettappadan Ahammedkutty V. 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 sentence awarded against the 1st revision petitioner is confirmed and the 2nd revision petitioner is sentenced to pay a fine of Rs. 1,65,000/- (Rupees one lakh sixty five thousand). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The 2nd Crl.R.P. 927/09 -3- 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 the aforementioned period, he shall suffer simple imprisonment for three months by way of default sentence. In the result, this Revision is disposed of as above. V. RAMKUMAR, JUDGE. mn.