IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 Crl.Rev.Pet.No. 511 of 2009() ----------------------------- CRA.39/2008 of SESSIONS COURT, KASARAGOD CC.283/2006 of JFCM(ADDL.MUNSIFF), KASARAGOD .................... REVN. PETITIONER(S): ------------------------------------ 1. J,.K.INDUSTRIES, 871 E FIRST FLOOR, CEEYELCOMPLEX, OLD BUS STAND KASARAGOD 2. JACOB GEORGE PARTNER JAY KAY INDUSTRIES 871 E FIRST FLOOR, CEEYEL COMPLEX, OLD BUS STAND KASARAGOD. 3. A.M.ABOOBACKER, PARTNER JAY KAY INDUSTRIES, 871E FIRST FLOOR, CEEYEL COMPLEX, OLD BUS STAND, KASARAGOD. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT(S): 1. M/S.GURUDEV TEA TRADERS, ARAFA BUILDING MISSION COMPOUND KASARAGOD, REP. BY ITS PROPERIETOR, A.GURUDATHA RAO, S/O.LATE A.KAMALAKSHA RAO, R/AT.ASHWINI NAJAR, KASARAGOD. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. = = = = = = = = = = = = = == = = Crl.R.P. No.511 of 2009 = = = = = = = = = = = = = = = = = Dated, this the 11 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 the accused in S.T.No.11/2004 on the file of the J.F.C.M-II (Addl.Munsiff), Kasaragod 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.7,00,000/- (Rupees seven lakhs only). The compensation ordered by the lower appellate court is also 7,00,000/- 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 Crl.R..P. No. 511/09 -: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 petitioners are sentenced to pay a fine of Rs. 7,00,000/- (Rupees seven lakhs 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.7,00,000/-(Rupees seven lakhs only) as compensation to the complainant within ten 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 2nd and 3rd petitioners 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 petitioners. Dated this the 9th day of February ,2009. V. RAMKUMAR, JUDGE. sj Crl.R..P. No. 511/09 -:3:-