IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 Crl.Rev.Pet.No. 200 of 2006() ----------------------------- CRL.A.NO.404 OF 2004 ON THE FILE OF THE ADDL.SESSIONS JUDGE, ALAPPUZHA C.C.NO.318 OF 1999 ON THE FILE OF THE J.F.C.M-1, ALAPPUZHA REVN. PETITIONER: APPELLANTS/ACCUSED 1, 2 3 AND 6 ------------------------------------------------------------------------------------------------ 1. VENAD KURIES, REGD. OFFICE DOOR NO.872/X, HARI NIVAS, THONDANKULANGARA, ALAPPUZHA, REPRESENTED BY ITS MANAGING PARTNER. 2. R.SANKAR, S/O.RUDRA DAS, MANAGING PARTNER, VENAD KURIES, SREEKUMAR BUILDING C.C.S.B ROAD, ALAPPUZHA. 3. K.RAMESAN, S/O.KUMARAN, MADATHIL HOUSE, THONDANKULANGARA, ALAPPUZHA. 4. M.NAZER, S/O.MUHAMMED IBRAHIM, NISHI GARDENS, VELLAKKINAR, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR RESPONDENTS: RESPONDENTS/STATE & COMPLAINANT ------------------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.Y.SAJITH, CHAPRAYIL, CANAL WARD, ALAPPUZHA. (DIED DURING THE PENDENCCY OF THE CASE AND REPRESENTED BY M.Y.SADEER, CHAPRAYIL, CANAL WARD, ALAPPUZHA. BY ADV. SRI.B.N.SHIVSANKAR FOR R2 PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ................................................. Crl.R.P. No.200 of 2006 ................................................ Dated this the 3 rd day of September, 2008 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 C.C.No.318 of 1999 on the file of the J.F.C.M-I, Alappuzha, 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'). 2. I heard the learned counsel for the Revision Petitioners and the learned counsel for the 2nd respondent. 3. The learned counsel appearing for the Revision Petitioners re- iterated the contentions in support of the Revision. The courts below have concurrently held that the cheque in question was drawn by the petitioners 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 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 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 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 Crl.R.P.No.200/2006 -:2:- finding so recorded concurrently by the courts below. The conviction was thus rightly entered against the petitioners. 4. What now survives for consideration is the question as to whether what should be the proper sentence to be imposed on the revision petitioners. Having regard to the facts and circumstances of the case, I am inclined to modify 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. Accordingly, for the conviction under Section 138 of the Act the 1st revision petitioner is sentenced to pay a fine of Rs.5,000/- (Rupees five thousand only) which shall be deposited within three months from today. A memo to that effect shall be produced before the trial Court in case of direct payment. If the 1st petitioner fails to deposit the said amount within the aforementioned period petitioners 2 to 4 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 3rd day of September, 2008. V. RAMKUMAR, JUDGE. sj Crl.R.P.No.200/2006 -:3:-