IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 Crl.Rev.Pet.No. 1113 of 2010() ------------------------------ CRA.237/2009 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM CC.470/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... REVN. PETITIONERS/APPELLANTS/ACCUSED 1& 2:- --------------------------------------------------------- 1. M/S.HABS AQUA SERVICES, DEVAGIRI, MAYYANAD, KOLLAM, REPRESENTED BY ITS MANAGING PARTNER, HANS DEVARAJ. 2. HANS DEVARAJ, MANAGING PARTNER, M/S.HABS AQUA SERVICES, DEVAGIRI, MAYYANAD, KOLLAM BY ADV. MR. BIJU BALAKRISHNAN RESPONDENTS/RESPONDENTS/COMPLAINANT:- ------------------------------------------------------ 1. M/S.HIGASHIMARU FEEDS (INDIA) LTD., AMALGAM HOUSE, WILLINGTON ISLAND, KOCHI, REPRESENTED BY ITS FINANCE MANAGER GEORGE JOSEPH. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. MR. P.A. SALIM, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ====================== Crl.R.P. No. 1113 of 2010 ====================== Dated, this the 8th day of April, 2010. O R D E R In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioners who were the accused in C.C. No.470 of 2004 on the file of the Judicial First Class Magistrate-I, Ernakulam 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 Rs.3,41,000/-. The fine/compensation ordered by the lower appellate court as against the 1st petitioner is Rs.10000/- and the 2nd petitioner is Rs.3,50,000/-. 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 cheque in question was drawn by the petitioners in favour of the complainant, that the complainant had validly complied with Crl.R..P. No. 1113/2010 -:2:- 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. 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 Crl.R..P. No. 1113/2010 -:3:- 2nd revision petitioner is sentenced to pay a fine of Rs.3,51,000/- (Rupees three lakhs and fifty one thousand only). The sentence of fine as against the 1st petitioner is not interfered with. The fine amount of Rs.3,51,000/- shall be paid as compensation under Section 357 (1) Cr.P.C. The 2nd 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 the 2nd revision petitioner fails to deposit or pay the said amount within the aforementioned period, the 2nd revision petitioner 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 8th day of April, 2010. V. RAMKUMAR, JUDGE. rv