IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 Crl.Rev.Pet.No. 1501 of 2008(C) ------------------------------ CRA.365/2006 of SESSIONS COURT, PATHANAMTHITTA ST.29/2004 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------------------- RAJAN NAIR, S/O.RAMAKRISHNAN NAIR, PLACKATTU HOUSE, KUMBAZHA .P.O, PATHANANTHITTA. BY ADV. SRI.V.K.SUNIL RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------------- 1. SHAJI V.KOSHY, VADAKKEVEETTIL HOUSE, OPP.KSRTC BUS STATION, PATHANAMTHITTA.P.O. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.PAULY MATHEW MURICKEN SRI. P. RAVINDRA BABU, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/08/2008, ALONG WITH CRL. R.P. NO. 2619/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ====================== Crl.R.P. No. 1501 & 2619 of 2008 ======================= Dated, this the 12th day of August,2008. O R D E R The petitioner in Crl. R.P. No. 1501 of 2008, who was the accused in S.T No. 29 of 2004 on the file of the Judicial First Class Magistrate, Pathanamthitta challenges the conviction entered and the sentence passed against him for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). The petitioner in Crl. R.P. No. 2619 of 2008 is the complainant in S.T. No. 29 of 2004. The cheque amount was Rs.7,00,000/- (Rupees seven lakhs only). 2. I heard the learned counsel for the Revision Petitioners and the learned counsel for the respondents. 3. The learned counsel appearing for the Revision Petitioners re-iterated the contentions in support of the Revision. The courts below have concurrently held that the cheque in question was drawn by the accused in favour of the complainant on the drawee bank, that the cheque was validly presented to the bank, that it was dishonoured for reasons which fall under Section 138 of the Act, that the complainant made a demand for payment by a notice in time in accordance with clause (b) of the proviso to Section 138 of the Act Crl.R.P. Nos. 1501 & 2619 of 2008 -:2:- and that the 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 accused while entering the above finding. The said finding has been recorded on an appreciation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the finding so recorded concurrently by the courts below. The conviction was thus rightly entered against the accused. 4. What now survives for consideration is the question as to whether what should be the proper sentence to be imposed on the accused. The lower appellate court was not justified in reducing the compensation amount from Rs.7,00,000/- to Rs.3,00,000/-. But the part payment of Rs.25,000/- to the complainant should be given credit to. Having regard to the facts and circumstances of the case, I am inclined to modify the sentence imposed on him. In the light of the recent decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya (2008(1) KLT 851) rendered on 3-8-2007 in Crl. Appeal 1013 of 2007, default sentence cannot be imposed for the enforcement of an order for compensation under Section 357 (3) Cr.P.C. Accordingly, for the conviction under Section 138 of the Act the revision petitioner in Crl. R.P. No. 1501 of 2008 is sentenced to pay a fine of Rs.6,75,000/- Crl.R.P. Nos. 1501 & 2619 of 2008 -:3:- (Rupees six lakhs and seventy five thousand only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. He 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, Crl. R.P. No. 1501 of 2008 is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner and Crl. R.P. No. 2619 of 2008 is allowed in part. Dated, this the 12th day of August,2008. V. RAMKUMAR, JUDGE. rv