IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 Crl.Rev.Pet.No. 1155 of 2010() ------------------------------ CRA.426/2009 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM CC.685/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O), ERNAKULAM .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED --------------------------------------- 1. M/S.K.G.ENTERPRISES, NO.12, ANJERIL BUILDING, BAKER HILL, KOTTAYAM-1, REPRESENTED BY PROPRIETOR KURUVILA GEORGE. 2. KURUVILA GEORGE, PROPRIETOR, K.G.ENTERPRISES, C/O.JACOB CHANDIPPILLA, MANALODIL HOUSE, VELOOR P.O., KOTTAYAM. BY ADV. MR.PHILIP T.VARGHESE MR.THOMAS T.VARGHESE MS.ACHU SUBHA ABRAHAM RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT: ---------------------------------------------------------------- 1. M/S.SKYLINE SYSTEMS & SERVICES,DOOR NO. 36/1862-C,SEBASTIAN ROAD,KALOOR P.O.,KOCHI, REPRESENTED BY ITS GENERAL MANAGER AND POWER OF ATTORNEY HOLDER-REGHUNATHA MENON, S/O.SREEDHARA MENON,SREEKRISHNA NIVAS, THARIPARAMBIL LANE,S.N.JUNCTION, TRIPUNITHURA P.O. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/04/2010, A/W CRRP.NO.1156/2010 AND OTHER CONN. CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. = = = = = = = = = = = = = == = = Crl.R.P.Nos.1155/2010, 1156/2010, 1140/2010 & 1166/2010 = = = = = = = = = = = = = = = = = Dated, this the 7th 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.Nos.685/2006, 689/2006, 683/2006 and 687/2006 on the file of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam, challenge 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 amount covered by all the four cheques was Rs. 1,53,000/-. The compensation ordered by the lower appellate court is Rs.1,58,000/-. 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 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 Crl.R..P. No.1155/2010 and Conn. cases -:2:- 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 second revision petitioner is sentenced to pay a fine of Rs.158,000/- (Rupees One Lakh Fifty Eight Thousand only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The second 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 second petitioner/second accused shall suffer simple imprisonment for three months by way of default sentence. The sentence of fine imposed on the 1st petitioner/1st accused is not interfered with. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioners. Dated this the 7th day of April, 2010. V. RAMKUMAR, JUDGE. bkn/-