IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 Crl.Rev.Pet.No. 261 of 2010() ------------------------- CRA.56/2008 of IV ADDL. DISTRICT JUDGE (ADHOC-II), THODUPUZAH ST.1704/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... REVN. PETITIONER(S): PETITIONER: -------------------------------- CHANDRABOSE, S/O.KRISHNAN, AGED 42, KAVUMKAL VEEDU, PETHOTTI P.O., SANTHANPARA, IDUKKI DISTRICT. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT(S): RESPONDENT: -------------------------- 1. BASIL VARGHESE, MANAGER, KLM CREDIT SYNDICATE KALOOR, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ................................................. Crl.R.P. No. 261 of 2010 ................................................ Dated: Ist March, 2010. 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. No. 1704 of 2005 on the file of the J.f.C.M. Adimaly, 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.1,34,500/-. The fine/compensation ordered by the lower appellate court is Rs.1,34,500/-. 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 made the following submissions before me in support of his fervent plea for admitting this Criminal Revision:- Crl.R..P. No 261 of 2010. -:2:- The complainant is a partnership firm. Ext.P1 power-of- attorney and authorisation was not produced along with the complaint. Therefore, the complaint was liable to be rejected at the threshold. Ext.P1 power-of-attorney is for conducting all the cases pertaining to the complainant/firm. Such a power of attorney could not have been used by the complainant. The complainant relies on a hire purchase agreement which has not been produced . The petitioner/accused had denied the transaction made by the complainant as well as the execution of the cheque. It is for the complainant to prove not only the ingredients of the offence but also the questions raised by the defence. In the absence of any of these, the conviction entered and the sentence passed against the revision petitioner cannot be sustained. 6. I am afraid that I cannot agree with the above submissions. He has no dispute that he is the account holder in respect of the account in question. He has also not disputed the fact that the cheque leaf in question pertaining to Ext.P2 cheque belongs to him. He did not even send a reply to the statutory notice issued by the complainant. Apart from not producing any scrap of paper in support of his defence, he did not even mount the witness box to speak in terms of the contentions now raised before Court. The power of attorney authorising the holder to represent the complainant in all cases in which the complainant is a party, is a general power-of-attorney and no exception could be taken against it. The courts below have rejected these contentions as per the judgments concurrently passed against him. This Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. Crl.R..P. No 261 of 2010. -:3:- 7. What now survives for consideration is the legality of the sentence imposed on the revision petitioner. In the light of the 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. 1,09,000/-. (Rupees one lakh nine 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 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 confirming the conviction entered but modifying the sentence imposed on the revision petitioner. Dated this the Ist day of March, 2010. Sd/-V. RAMKUMAR, JUDGE. ani/- /true copy/ P.S. to Judge