IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 Crl.Rev.Pet.No. 2583 of 2003() ------------------------------ CRA 55/2001 ON THE FILE OF THE IIIRD ADDL.SESSIONS JUDGE (ADHOC) FAST TRACK COURT - I, THRISSUR C.C.NO.886 OF 1998 ON THE FILE OF THE JFCM, WADAKKANCHERRY REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------------------ N.K.VISWAMBARAN, S/O.NARAYANA THOTTATHIL KUTTAPPAN, MANAKULANGARA DESOM, KODAKARA. BY ADV. SRI.K.A.JALEEL RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE -------------------------------------------------------------------------------------------------- 1. KAMALAKSHY,D/O.LAKSHMI AMMA, POWER OF ATTORNEY HOLDER OF K.P.RAVINDRAN,S/O.KUNJUKUTTY AMMA, POZHAYANNUR VADAKKETHARA VILLAGE, THALAPPILLY TALUK. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. = = = = = = = = = = = = = == = = Crl.R.P. No.2583 of 2003 = = = = = = = = = = = = = = = = = Dated, this the 3rd 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 C.C.No.886 of 1998 on the file of the J.F.C.M ,Wadakkancherry, challenges the conviction entered and the sentence passed against him for offences punishable under section 420 IPC and section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). The cheque amount was Rs.1,.50,000/- . The compensation ordered by the lower appellate court is Rs.1,60,000/-. 2. Heard both sides. 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 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 Crl.R..P. No.2583 /2003 -:2:- 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. The courts below recorded a conviction not only under Section 138 of the Negotiable Instruments Act, but also under Section 420 IPC for the reason that the account had been closed. Since a prosecution under Section 138 of the Negotiable Instruments Act cannot be defeated for the reason that the cheque was dishonoured on the ground that the account was closed in view of the decision NEPC MICON LTD AND OTHERS v. MAGMA LEASING LTD (1999(4) SCC, 253), I am not going into the legality or otherwise of the conviction under Section 420 IPC. Suffice it to say that the conviction under Section 138 of the N.I.Act is fully justified 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 Crl.R..P. No.2583 /2003 -:3:- 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.1,65,000/- (Rupees one lakh sixty 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 five 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. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. Dated this the 3rd day of March, 2010. V. RAMKUMAR, JUDGE. sj Crl.R..P. No.2583 /2003 -:4:-