IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 3658 of 2010() ------------------------------------ CRA.224/2007 of ADDL.SESSIONS COURT-III, KOZHIKODE CC.539/2003 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER(S)/APPELLANTS/2ND AND 4RD ACCUSED ------------------------------------------------------------------------ 1. OMPRAKASH, AGED 46 YEARS, S/O. KRISHNAN, KAIKOTAKAVIL, 23/347, KUTHIRAVATTOM, KOZHIKODE. 2. M.MOHAN, KAIKOTAKAVIL, KUTHIRAVATTOM, KOZHIKODE. BY ADVS. SRI.P.V.KUNHIKRISHNAN SRI.HANSON.P.MATHEW RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE -------------------------------------------------------------------- 1. JAGADEESH, ARJANDAS, S/O. ARJANDAS, “SIVA KRIPA”, MANGOTTUVAYAL, KOTTOOLY, KOZHIKODE – 673 572. 2. STATE OF KERALA, REP. PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/12/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ V.RAMKUMAR, J. = = = = = = = = = = = = = = = = Crl.R.P.No.3658 of 2010 = = = = = = = = = = = = = = = = Dated this the 6 th day of December, 2010 O R D E R In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioners, who was accused Nos. 2 and 3 in C.C.No.539/2003 on the file of the J.F.C.M-IV, Kozhikode, challenge the conviction entered and the sentence passed against them for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). The cheque amount was `1,00,000/- . The compensation ordered by the lower appellate court is `50,000/- each. 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 Crl.R..P. No.3658/ 2010 -:2:- 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 that the Revision Petitioners/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 petitioners 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 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 petitioners. No doubt, now after the decision of the Apex Court in Vijayan v. Sadanandan K. and Another (2009) 6 SCC 652 it is permissible for the Court to slap a default sentence of imprisonment while awarding compensation under Sec. 357 (3) Cr.P.C. But, in that event, a sentence of imprisonment will Crl.R..P. No.3658/ 2010 -:3:- be inevitable. I am, however, of the view that in the facts and circumstances of this case a sentence of fine with an appropriate default sentence will suffice. Accordingly, for the conviction under Section 138 of the Act each of the revision petitioners is sentenced to pay a fine of `52,500/- (Rupees fifty two thousand five hundred only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioners are permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within 5 months from today and produce a memo to that effect before the trial Court in case of direct payment. If they fail to deposit or pay the said amount within the aforementioned period they 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 petitioners. Dated this the 6th day of December, 2010. V. RAMKUMAR, JUDGE. sj