IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 Crl.Rev.Pet.No. 1070 of 2005() ------------------------------ C.C. NO. 517 OF 1998 OF J.F.C.M. KOTHAMANGALAM CRA. NO. 532 OF 2004 OF DISTRICT JUDGE, ERNAKULAM REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- T.S.SOMAN, AGED 45, S/O. SIVASANKARAN NAIR, THOTTATHIKUDIYIL HOUSE, KALAMPOORKARA, ENANELLOOR VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.SHAJI JOSEPH RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. VARGHESE M.P., AGED 38 MALEKUDIYIL HOUSE, KALAMPOORKARA, ENANELLOOR VILLAGE, MUVATTUPUZHA TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. ADV. SRI.MATHEW SKARIA FOR R1 PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ................................................. Crl.R.P. No. 1070 of 2005 ................................................ Dated: 10th 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 C.C. No. 517 of 1998 of J.F.C.M., Kothamangalam 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. 40,000/-. The fine/compensation ordered by the lower appellate court is Rs. 40,000/-. 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 Crl.R..P. No. 1070 of 2005 -:2:- 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. 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 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.40,000/-. (Rupees forty 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 three months from today and produce a memo to that effect before the trial Crl.R..P. No. 1070 of 2005 -:3:- 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 day................... 2008. V. RAMKUMAR, JUDGE. ani/-