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. 2355 of 2007() ------------------------------ CRA NOS. 592 & 593/2005 of IV ADDL.SESSIONS COURT, ERNAKULAM CC.2212 & 2214 of 2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER: PETITIONER/ APPELLANT/ ACCUSED:- ----------------------------------------------------------------- A.SUBHAIR, S/O.AHMED, EDAPILLAKATHU HOUSE, TC.NO.39/1377, K.K.MARKET,CHALA, TRIVANDRUM. A.SUBHAIR (PARTY IN PERSON) RESPONDENT/ RESPONDENTS/ COMPLAINANT & STATE:- ---------------------------------------------------------------- 1. JIMMY THOMAS, POLLYTHAZHATHU HOUSE, MYLACOMBU,THODUPUZHA. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM . ADV. MR. P.A. SALIM, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/04/2010, ALONG WITH CRL.R.P. NO. 2356/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ====================== Crl.R.P. Nos. 2355 & 2356 of 2007 ====================== Dated, this the 8th day of April, 2010. O R D E R In these Revision Petitions filed under Section 397 read with Sec. 401 Cr.P.C. the common revision petitioner who was the common accused in C.C. Nos. 2214 and 2212 of 2003 on the file of the Judicial First Class Magistrate, Muvattupuzha 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 total amount covered by the two cheques, was Rs.67,446/-. Those two cheques were issued in the year 1998. The fine/compensation ordered by the lower appellate court is also Rs.67,446/-. 2. I heard the Revision Petitioner appearing as party in person and the learned Public Prosecutor. It was after disengaging his counsel that the revision petitioner Crl.R..P. No. 2356/2007 -:2:- appeared in person. 3. The Revision Petitioner re-iterated the contentions in support of the Revision and flourished certain papers from his personal file requesting this Court to look into them. He, having not chosen to produce those documents in both the courts below cannot put forward contentions based on materials off the record. 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. This Court sitting in the rarefied revisional jurisdiction will Crl.R..P. No. 2356/2007 -:3:- 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.72,000/- (Rupees 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 Crl.R..P. No. 2356/2007 -:4:- said fine amount before the Trial Court below or directly pay the compensation to the complainant within five 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, these Revision petitions are disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. Dated this the 8th day of April, 2010. V. RAMKUMAR, JUDGE. rv