IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 Crl.Rev.Pet.No. 1192 of 2008() ------------------------------ CRA.372/2005 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.577/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEYYATTINKARA .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------------------- SREEDHARAN, S/O.RAGHAVAN, THACHODE PUTHEN VEEDU, THACHODE, PARASSALA. BY ADV. SRI.VELLAYANI SUNDARARAJU SMT.P.MEENAKUMARI RESPONDENTS: COMPLAINANT AND STATE ------------------------------------------------ 1. MARY JOSEPHINE MAJODALE, HOSPITAL JUNCTION, PARASSALA VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. K.S. SIVAKUMAR, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ====================== Crl.R.P. No. 1192 of 2008 ======================= Dated, this the 10th day of April,2008. O R D E R In this Revision petition filed under Section 397 read with Section 401 Cr.P.C. the petitioner who was the accused in C.C. No. 577 of 2000 on the file of the Judicial First Class Magistrate- II, Neyyattinkara challenges the conviction entered and the sentence passed against him for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor and also the learned counsel for the complainant. 3. The learned counsel appearing for the Revision Petitioner re-iterated the contentions in support of the Revision. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant on the drawee bank, that the cheque was validly presented to the bank, that it was dishonoured for reasons which CRL.R.P. NO. 1192/2008 -:2:- fall under Section 138 of the Act, that the complainant made a demand for payment by a notice in time in accordance with clause (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. 4. The learned counsel appearing for the revision petitioner made the following submissions before me in support of the revision:- Even though the cheque is dated 31.12.1999 and it was presented by the complainant before the collecting bank on 28.06.2000, the actual dishonour by the drawee bank is only on 03.07.2000 which is beyond the period of validity of the cheque and therefore the prosecution should fail. The complainant examined as PW1 had admitted that on 19.06.1999 the accused had assigned an extent of 20 cents of land to the complainant. If so, there cannot be any subsisting liability under the cheque in question. 5. I am afraid that I cannot agree with both the above contentions which have been found against. As a matter of fact CRL.R.P. NO. 1192/2008 -:3:- the courts below have held that the cheque was presented before the drawee bank actually on 28.06.2000 and the cheque contains the seal of the drawee bank as well as the signature of the Bank Manager on 28.06.2000. If so, the cheque was presented before the drawee bank within the validity period of six months. 6. Regarding the further contention also, the said contention does not appear to have been urged before the courts below whose judgments are silent regarding the said contention. The revision memorandum also does not say that even though the said contention was urged before the courts below, the courts below had failed to consider the contentions, which is the submission now made before me. Merely because the complainant examined as PW1 had admitted that on 19.06.1999 the accused assigned 20 cents of property to the complainant, that does not mean that the liability under Ext.P1 cheque has been discharged. PW1 has not admitted that the assignment of the property was in consideration of the liability under the cheque in question. Hence I see no ground to interfere with the CRL.R.P. NO. 1192/2008 -:4:- concurrent findings recorded by the courts below. 7. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the above finding. The said finding has been recorded on an appreciation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the finding so recorded concurrently by the courts below. The conviction was thus rightly entered against the petitioner. 8. What now survives for consideration is the question as to whether what should be the proper sentence to be imposed on the revision petitioner. Having regard to the facts and circumstances of the case, I am inclined to modify the sentence imposed on the revision petitioner. In the light of the recent decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya (2008(1) KLT 851) rendered on 3-8- 2007 in Crl. Appeal 1013 of 2007, default sentence cannot be imposed for the enforcement of an order for compensation under Section 357 (3) Cr.P.C. Accordingly, for the conviction under Section 138 of the Act the revision petitioner is sentenced to pay CRL.R.P. NO. 1192/2008 -:5:- a fine of Rs.1,00,000/- (Rupees one lakh 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. V. RAMKUMAR, JUDGE. rv