IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 3536 of 2010() ------------------------------ CRA.192/2006 of ADDL. SESSIONS COURT, THRISSUR CC.67/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY .................... REVISION PETITIONER(S): APPELLANTS/ACCUSED 1 AND 2: ------------------------------------------------------------------------------------------ 1. K.V.NARAYANAN,AGED 48,S/O.K.VELU, KARIKAL VEEDU, CHERAMANGALAM,ALATHOORE, PALAKKAD DISTRICT. 2. K.K.SATHEESH,S/O.KUNJU, CHERAMANGALAM, ALATHOORE,PALAKKAD DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): RESPONDENTS/STATE OF KERALA AND COMPLAINANT: ---------------------------------------------------------------------------------------------------------------- 1. THE STATE OF KERALA,REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM-31. 2. P.V.K.UNNI NAIR, S/O.KUNJIMALU NESSIAR, PARATHIKKATTU,VEETHOTTU NAIR HOUSE, ARANGOTTUKARA PO, EZHUMANGOD, TALAPPILLY TALUK - 680 618. R1 BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.RAMKUMAR, J. = = = = = = = = = = = = = = = = Crl.R.P.No.3536 of 2010 = = = = = = = = = = = = = = = = Dated this the 1 st day of December, 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 C.C.No.67/2002 on the file of the J.F.C.M, Wadakkencherry, 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 `65,000/- (Rupees sixty five thousand only). The compensation ordered by the lower appellate court is `65,000/- (Rupees sixty five thousand only). 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. Crl.R..P. No. 3536/2010 -:2:- 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 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. No doubt, now after the decision of the Apex Court in Vijayan v. Sadanandan K. and Another (2009) 6 SCC 652 it is permissible for the Court to slap a default sentence of imprisonment while awarding compensation under Sec. 357 (3) Crl.R..P. No. 3536/2010 -:3:- Cr.P.C. But, in that event, a sentence of imprisonment will be inevitable. I am, however, of the view that in the facts and circumstances of this case a sentence of fine with an appropriate default sentence will suffice. Accordingly, for the conviction under Section 138 of the Act the revision petitioners are sentenced to pay a fine of `70,000/- (Rupees seventy thousand only) (`35,000/- each). The said fine shall be paid as 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 5 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 they 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 1st day of December, 2010. V. RAMKUMAR, JUDGE. sj