IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 Crl.Rev.Pet.No. 3893 of 2008() ------------------------------ CRA.508/2003 of ADDL. SESSIONS COURTS (ADHOC), MAVELIKKARA CC.460/2000 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONER(S): --------------------- K.V. SADANANDAN, KALOOR HOUSE, VETTICODE P.O. BHARANICKAVU VILLAGE BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.KAVITHA GANGADHARAN SRI.A.R.DILEEP RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. N. SANKARA KURUP, KALEECKAL HOUSE, KOMALLOOR MURI, CHUNAKKARA VILLAGE PUBLIC PROSECUTOR SRI. JAYAKRISHNAN SRI.IYPE JOSEPH FOR R.2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ................................................. Crl.R.P. No. 3893 OF 2008 ................................................ Dated: 9th February, 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 C.C. No. 460 of 2000 on the file of the J.F.C.M., Mavelikkara 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.1,25,000/-. The fine/compensation ordered by the lower appellate court is Rs.1,25,000/- 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor. 3. The learned counsel appearing for the Revision Petitioner 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. 5. The learned counsel appearing for the revision petitioner assailed the conviction recorded by the courts below on the following grounds:- Crl.R..P. No. 3893 of 2008 -:2:- The accused is a driver under the K.S.R.T.C. He has actually no acquaintance with the complainant. The complainant's case that the accused borrowed Rs. 1,25,000/- and issued Ext.P1 cheque and signed the same in his presence is utter falsehood. The accused had specifically denied his signature in Ext.P1 cheque during the cross-examination of the complainant as P.W.1 . His case was that a cheque leaf which was lost by him long ago was misused by the complainant who foisted a false case against him. The observation by the trial court that until the accused stepped into the witness box as DW3 he had not disputed his signature on Ext.P1 cheque is not correct. Even during the cross- examination of P.W.1 the accused had suggested to him that the signature and the handwriting in Ext.P1 are not that of the accused. The conviction has been recorded by the courts below without noticing that the colour of the ink in the body of the cheque and in the signature is different. Exts.D1 to D5 would go to show that on the relevant date the accused was on duty as a driver in the K.S.R.T.C. Bus and the case of the complainant is not true. 6. I am afraid that I cannot agree with the above submissions. It was only during the fag of the testimony of P.W.1 that the petitioner put a suggestion that the signature and handwriting occurring in Ext.P1 is not that of the accused. But immediately before that, the question put to P.W.1 was that Ext.P1 was the cheque which was entrusted to P.W.1 by somebody and P.W.1 was presenting the same before the bank after writing a higher amount therein. Absolutely no explanation has been Crl.R..P. No. 3893 of 2008 -:3:- offered by the petitioner as to how a cheque leaf belonging to him came into the hands of the complainant. He had no case that as soon as he lost the cheque leaf he had informed the bank or lodged a complaint before the police. The alibi set up by the petitioner also was not accepted by the courts below. 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 evidence so recorded concurrently by the courts below and the same is hereby confirmed. 7. 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, 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. 1,35,000/-. (Rupees one lakh thirty five 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 trial Court 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 Crl.R..P. No. 3893 of 2008 -:4:- 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 day 9 th February, 2009. Sd/-V. RAMKUMAR, JUDGE. ani/- /true copy/