Kerala High CourtM/S.K.G.Enterprises vs M/S.Skyline Systems & Services on 7 April, 2010Author:V.RamkumarBench:V.RamkumarIN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1154 of 2010()


1. M/S.K.G.ENTERPRISES, NO.12,
                      ...  Petitioner
2. KURUVILA GEORGE, PROPRIETOR,

                        Vs



1. M/S.SKYLINE SYSTEMS & SERVICES,DOOR NO.
                       ...       Respondent

2. STATE OF KERALA REPRESENTED BY THE

                For Petitioner  :SRI.PHILIP T.VARGHESE

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :07/04/2010

 O R D E R
                          V.RAMKUMAR, J.
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                      Crl.R.P.No.1154 of 2010
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                Dated, this the 7th day of April, 2010

                              O R D E RIn this Revision Petition filed under Section 397 read withSec. 401Cr.P.C. the petitioners who were the accused in

C.C.No.681 of 2006 on the file of the Additional Chief Judicial

Magistrate   (Economic     Offences),   Ernakulam,    challenge   the

conviction entered and the sentence passed against them for an

offence punishable underSec.138of the Negotiable Instruments

Act, 1881 (hereinafter referred to as 'the Act').  The        cheque

amount was Rs.67,421/-.     The compensation ordered by the lower

appellate court is Rs.67,450/-.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

clauses (a) and (b) of the proviso toSection 138of 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 factCrl.R..P. No.1154/2010                     -:2:-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.                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

underSec. 357 (3)Cr.P.C.              I am, therefore, inclined to modify the

sentence to one of fine only. Accordingly, for the conviction underSection 138of the Act the revision petitioners are sentenced to pay

a fine of Rs.70,000/- (Rupees Seventy Thousand only).                       The

said fine shall be paid as compensation underSection 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 six 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  second     petitioner/second

accused shall suffer simple imprisonment for three months by way

of default sentence. The sentence of imprisonment imposed on 1st

petitioner/1st accused is not interfered with.In the result, this Revision is disposed of confirming the

conviction entered but modifying the sentence imposed on the

revision petitioners.Dated this the 7th day of April, 2010.V. RAMKUMAR, JUDGE.bkn/-