IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR SATURDAY, THE 12TH SEPTEMBER 2009 / 21ST BHADRA 1931 Crl.Rev.Pet.No. 542 of 2009() --------------------------------------- CRA.531/2006 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM CC.587/2005 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM REVN. PETITIONER: ----------------------------- B.VIJAYAN NAIR VRINDAVAN HOTEL. LEKSHMY BHAVAN PAMPADY PO, KOTTAYAM DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): ------------------------- 1. P.JAYACHANDRAN NAIR PLATHANATHU HOUSE, POOTHAKUZHY PO PAMPADY, KOTTAYAM DISTRICT. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J .............................. Crl.R.P. No.542 of 2009 ................................................ Dated, this the 12th 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 petitioner who was the accused in C.C.No.587 of 2005 on the file of the Judicial First Class Magistrate's Court - I, Kottayam 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 cheque amount was Rs.1,25,000/-. The compensation ordered by the lower appellate court is Rs.1,25,000/-. 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor. 3. The learned counsel appearing for the Revision Petitioner reiterated the contentions in support of the Revision. Crl.R.P.No.542 of 2009 - 2 - 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. 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 recent decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya - 2008 Crl.R.P.No.542 of 2009 - 3 - (1) KLT 851 default sentence cannot be imposed for the enforcement of an order for compensation under Section 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.1,25,000/- (Rupees one lakh twenty five 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 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. Crl.R.P.No.542 of 2009 - 4 - 6. The petitioner shall be released from the Sub Jail, Kollam unless his continued detention is found necessary in connection with any other case. However, his release shall be subject to his liability to pay the above said amount. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. Dated this the 12th day February, 2009. V. RAMKUMAR, JUDGE. skr