IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 Crl.Rev.Pet.No. 799 of 2000() --------------------------------- CRA NO. 408/1999 of V ADDL. SESSIONS COURT, ERNAKULAM. C.C. NO. 332/1998 of JUDICIAL FIRST CLASS MAGISTRATE-I, ERNAKULAM. REVN. PETITIONER: ---------------------- A.N. KRISHNAN NAIR, S/O. M.K. NARAYANAN NAIR, MOOTHARIL HOUSE, PAZHAKKAPPALLY P.O. (VIA) MUVATTUPUZHA, ERNAKULAM DISTRICT. BY ADV. SRI.V.SANKARA RAJA RESPONDENTS: ----------------- 1. M/S. DOCTORS DIAGNOSTIC CENTRE, P.B. NO. 1025, THAMPI BUILDING, M.G. ROAD, ERNAKULAM, REPRESENED BY POWER OF ATTORNEY, C. JAYARAJ PANICKER. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, ERNAKULAM. BY ADV. SRI.S.SREEKUMAR FOR R1 SRI. P. RAVINDRA BABU, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 799/2000 : 2: ORDER ON CRL. M.P.NO. 4249/2000 IN CRL.R.P. NO. 799/2000 DISMISSED 30.05.2008 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR, J ------------------------------------------- CRL. R.P. NO. 799 of 2000 ---------------------------------------- 30th day of May, 2008 ORDER V.RAMKUMAR, J. ====================== Crl.R.P. No. 799 of 2008 ======================= Dated, this the 30th day of May,2008. O R D E R Heard both sides. 2. 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. 332 of 1998 on the file of the Judicial First Class Magistrate-I, Ernakulam 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'). 3. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor and also the learned counsel for the complainant. 4. 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 CRL.R.P. NO. 799/2000 -:2:- 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 Petitioner/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 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. 5. 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- CRL.R.P. NO. 799/2000 -:3:- 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 a fine of Rs.20,000/- (Rupees twenty thousand only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The learned counsel appearing for the 1st respondent/complainant submitted that the complainant has received the entire amount payable by the revision petitioner/accused. If so, nothing remains to be done in this matter. 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