IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 Crl.Rev.Pet.No. 491 of 2009() ----------------------------- CRA.668/2004 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI ST.11/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), MANJERI .................... REVN. PETITIONER(S): 1. ALLIANCE MARKETING ASSOCIATES, SUJATHA NIVAS, PUTHIYA ROAD, AROOR P.O,, THRIPUNITHURA, ERNAKULAM DISTRICT. 2. SURESH, MANAGING PARTNER, ALIANCE MARKETING ASSOCIATES, SUJATHA NIVAS, PUDIYA ROAD, AROOR P.O, THRIPUNITHURA, ERNAKULAM DISTRICT. BY ADV. SRI.T.MADHU SRI.K.V.BINOD RESPONDENT(S): 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ASIAN MARKETING ASSOCIATES, REPRESENTED BY ITS PARTNER, K.P.VIJAYAN, S/O.UNNI MENON, THERAK, MANJERI, MALAPPURAM DISTRICT. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. = = = = = = = = = = = = = == = = Crl.R.P. No.491 of 2009 = = = = = = = = = = = = = = = = = Dated, this the 9 th day of February, 2009 O R D E R In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioners who were accused Nos.1 and 2 in S.T.No.11/2004 on the file of the J.F.C.M-II(Forest Offences), Manjeri challenges 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.35,000/- (Rupees thirty five thousand only). No compensation was ordered by the lower appellate court. 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 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 Crl.R..P. No. 491/2009 -:2:- evidence. 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 recent 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. 35,000/- (Rupees thirty five thousand only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioners shall together either pay or deposit before the trial court a sum of Rs.35,000/-(Rupees thirty five thousand only) as compensation to the complainant within three months from today and produce a memo to that effect before the trial Court in case of direct payment. If they fail to deposit or pay the said amount within the aforementioned period the 2 nd 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 petitioner. Dated this the 9th day of February ,2009. V. RAMKUMAR, JUDGE. sj Crl.R..P. No. 491/2009 -:3:-