IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 Crl.Rev.Pet.No. 424 of 2009() --------------------------------------- CRA.366/2008 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.1184/2005 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,PERUMBAVOOR REVN. PETITIONER: ---------------------------- P.O.JOSEPH AGED 49 YEARS, S/O. OUSEPH, POTTOKKARAN HOUSE, CHENGAL KALADY PO, RESIDING AT C/O. ANTONY N.J MAROTTIKUDY HOUSE, MEKKALADY,KALADY P.O. BY ADV. SRI.V.V.SIDHARTHAN RESPONDENT(S): ------------------------ 1. M/S.CHAITHANYA ENTERPRISES KANJOOR, REPRESENTED BY K.V.VENUGOPAL, S/O.VASUDEVAN, AGED 49 YEARS, NEDUMPALLY VEEDU, KOOVAPPADY KARA. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ............................. Crl.R.P. No.424 of 2009 ................................................ Dated, this the 11th day of February, 2009. O R D E R In this Revision Petition filed under Section 397 read with Section 401 Cr.P.C. the petitioner who was the accused in C.C.No.1184 of 2005 on the file of the Judicial First Class Magistrate Court, Perumbavoor 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.1,72,975/-. The compensation ordered by the lower appellate court is Rs.1,62,975/- 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor. 3. The learned counsel appearing for the Revision Petitioner reiterated the contentions in support of the Revision. Crl.R.P.No.424/2009 - 2 - 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. 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. In the light of the recent decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya - 2008 Crl.R.P.No.424/2009 - 3 - (1) KLT 851 default sentence cannot be imposed for the enforcement of an order for compensation under Section 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.1,72,000/- (Rupees one lakh seventy two 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 a period of seven 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. Crl.R.P.No.424/2009 - 4 - In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. Dated this the 11th day of February, 2009. V. RAMKUMAR, JUDGE. skr