IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 Crl.Rev.Pet.No. 3119 of 2009() ------------------------------ CRA.107/2009 of III ADDL. DISTRICT & SESSIONS COURT (ADHOC-I), THODUPUZHA ST.73/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... REVN. PETITIONERS/APPELLANTS/ACCUSED:- --------------------------------------------------- 1. KURIAN DEVASSIA,PATHIL HOUSE, MANPPADY,NEDUMKANDOM.P.O,IDUKKI. 2. SALY KURIAN,W/O.KURIAN,PATHIL HOUSE, MANPPADY,NEDUMKANDOM.P.O,IDUKKI. BY ADV. MR. S.RAJEEV RESPONDENTS/COMPLAINANT & STATE:- ----------------------------------------------- 1. SREE GOKULAM CHIT AND FINANCE CO.(P)LTD, 356,ARCOT ROAD,KODAMBAKKOM,CHENNAI-24,REP.BY THE POWER OF ATTORNEY HOLDER MR.A.V.SANTHOSH, S/O.VIJAYABHANU, ASST.BUSINESS MANAGER,THODUPUZHA BRANCH. 2. STATE OF KERALA,REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV. MR. C.S. HRITHWIK, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ====================== Crl.R.P. No. 3119 of 2009 ====================== Dated, this the 4th day of January, 2010. O R D E R In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioners who were accused Nos. 1 and 2 in S.T. No. 73 of 2008 on the file of the Judicial First Class Magistrate-II, Thodupuzha 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.42,380/-. The fine/compensation ordered by the lower appellate court is Rs.45,000/-. 2. I heard the learned counsel for the Revision Petitioners and the learned Public Prosecutor. 3. The learned counsel appearing for the Revision Petitioners 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 Crl.R..P. No. 3119/2009 -:2:- 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 recorded after a careful evaluation of the oral and documentary evidence. 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 revision petitioners are sentenced to pay a fine of Rs.50,000/- (Rupees fifty thousand only). The said fine shall be paid as Crl.R..P. No. 3119/2009 -:3:- compensation under Section 357 (1) Cr.P.C. The revision petitioners are 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 they fails to deposit or pay the said amount within the aforementioned period they shall suffer simple imprisonment for three months each 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 4th day of January, 2010. V. RAMKUMAR, JUDGE. rv