IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 Crl.Rev.Pet.No. 3824 of 2009() ------------------------------ CRA.1224/2006 of ADDL. SESSIONS COURT, FAST TRAC (ADHOC)-II, THIRUVANANTHAPURAM ST.79/2005 of JUDICIAL FIRST CLASS MAGISTRATE -IX, THIRUVANANTHAPURAM .................... REVN. PETITIONER/APPELLANT/ACCUSED:- ------------------------------------------------- G.RADHAKRISHNAN NAIR,"SRUTHY", U.P.NO.IX/372,KALLAMPALLY,ELAMAKULAM JUNCTION, SREEKARIYAM.P.O,THIRUVANANTHAPURAM. BY ADV. MR. B.SATHIQ MR. C. ANIRUDHAN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:- ----------------------------------------------------------------- 1. V.S.PRASANTH,"PRASANTHY", NEAR OIL MILL, SREEKARIYAM,THIRUVANANTHAPURAM. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA. ADV. MR. M.RAJASEKHARAN NAYAR FOR R1 MS. K.N.RAJANI FOR R1 MR. RADHIKA RAJASEKHARAN P. FOR R1 MS. ANILA PETER FOR R1 MR. C.M. NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 3824/2009 ORDER ON CRL. M.A. NO. 12125/2009 IN CRL.R.P. NO. 3824/2009 DISMISSED 19.03.2010 sd/- V. RAMKUMAR, JUDGE. V.RAMKUMAR, J. ====================== Crl.R.P. No. 3824 of 2009 ====================== Dated, this the 19th day of March, 2010. 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 S.T. No.79 of 2005 on the file of the Judicial First Class Magistrate-IX, Thiruvananthapuram 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 cheque amount was Rs.2,40,000/-. The fine/compensation ordered by the lower appellate court is Rs.2,40,000/-. 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor. 3. The learned counsel appearing for the Revision Petitioner 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 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 Crl.R..P. No. 3824/2009 -:2:- 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 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. 6. The learned counsel appearing for the 1st respondent/complainant admitted that he has received the Crl.R..P. No. 3824/2009 -:3:- money under the very same cheque in execution of the decree in O.S. No. 197 of 1998 on the file of the Sub Court, Thiruvananthapuram. If so, the above supervening event has to be taken note of while moulding the sentence. Accordingly, for his conviction under Section 138 of the Negotiable Instruments Act, the petitioner is sentenced to pay a fine of Rs.500/- (Rupees five hundred only) and on default to pay the fine, to suffer simple imprisonment for 10 days. He is given one month's time to pay or deposit the fine amount before the trial court. This revision is disposed of as above. Dated this the 19th day of March, 2010. V. RAMKUMAR, JUDGE. rv