IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 16TH SEPTEMBER 2011 / 25TH BHADRA 1933 Crl.Rev.Pet.No. 2245 of 2011() ------------------------------ CRA.99/2010 of SESSIONS COURT, PALAKKAD ST.221/2009 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... REVN. PETITIONERS/APPELLANTS/ACCUSED 1&2: ------------------------------------------------------------------------ 1. THRISSUR POORAM JEWELLERY, SRIVALLI COMPLEX ANIKKODE, CHITTUR, PALAKKAD REPRESENTED BY MG.PARTNER, PUSHPANGATHAN K.K., S/O.KUMARAN K.V. 2. PUSHPANGATHAN K.K., AGED 45 YEARS, S/O.KUMARAN K.V., MANAGING PARTNER, THRISSUR POORAM JEWELLERY. BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE -------------------------------------------------------------------------------------- 1. M/S.SREE GOGULAM CHIT & FINANCE CO.(P) LTD., DIVISIONAL OFFICE AT SANJOSE TOWERS, OPP.KSRTC BUS STAND, SHORNUR ROAD, PALAKKAD REPRESENTED BY K.K.SUBASH KUMAR, S/O.MR.KRISHNAN, PULINELLI, KOTTAYI, PALAKKAD- 678572. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.RAMKUMAR, J. ................................................. Crl.R.P. No. 2245 of 2011 ................................................ Dated: 16-09-2011 O R D E R In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioners who are accused Nos. 1 and 2 in S.T. No. 221 of 2009 on the file of the Chief Judicial Magistrate, Palakkad, challenge 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. 10,55,476/-. The fine/compensation ordered by the lower appellate court is Rs. 5,55,476 by A1 and Rs. 5,00,000/- by A2. 2. I heard the learned counsel for the Revision Petitioners 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 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 Crl.R..P. No. 2245 of 2011 -:2:- 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 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 first revision petitioner is sentenced to pay a fine of Rs. 5,55,476/- (Rupees five lakh fifty five thousand four hundred and seventy six only) and the second revision petitioner is sentenced to pay a fine of Rs. 5,05,000/- (Rupees five lakh five thousand only). The said fine amounts shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioners are permitted either to deposit the said compensation before the trial Court or directly pay the compensation to the complainant within 10 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 revision petitioner shall suffer simple imprisonment for three months by way of default sentence. Crl.R..P. No. 2245 of 2011 -:3:- In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. Money, if any, deposited by the revision petitioners shall be given credit to. The complainant shall be permitted to withdraw the amounts, if any, in deposit . Dated this the 16th day of September, 2011. Sd/-V. RAMKUMAR, JUDGE. /true copy/ P.S. to Judge