IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 Crl.Rev.Pet.No. 593 of 2011() ----------------------------- CRA.386/2009 of ADDL. DISTRICT &SESSIONS COURT (ADHOC III, N.PARAVUR AGAINST CC.1252/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------------------------------------------------- T.R.DEVAN, S/O.RAGHAVAN PILLAI, AGED 43 YEARS, BUREAU CHIEF, THANINIRAM DAILY, ISMAIL ESTATE, KUTTAPPAYI ROAD, KOCHI-30. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.M.F.MOHAMMOD SIYAD RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------------------------------------ 1. T.K.AYYAPPAN, AGED 65 YEARS, FATHER'S NAME NOT KNOWN TO THE REVISION PETITIONER, CHADRALAYAM, SREEMOOLANAGARAM KARA, CHOVVARA VILLAGE, ALUVA TALUK. 683571 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.RAJIV NAMBISAN FOR R1 SRI.SAJAN PUTHENVEETTIL FOR R1 PUBLIC PROSECUTOR SRI. V.TEK CHAND FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Crl.R.P. No. 593 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27 th day of May , 2011 ORDER The accused in a prosecution for the offence under Section 138 of Negotiable Instruments Act is the revision petitioner and he challenges the conviction and sentence imposed on him by the court below under Section 138 of N.I. Act. 2. The counsel for the petitioner submitted that the petitioner has no contention on merit and his grievances is with respect to the sentence imposed by the court below. It is also the submission of the learned counsel for the petitioner that the petitioner may be granted some time to compensate the complainant. Having regard to the facts and circumstances involved in the case I am of view that the said submission of the learned counsel requires positive consideration. 3. The cheque in question is dated 3.7.2003 and that too for an amount of Rs.1,20,000/-(rupees one lakh twenty thousand only). Crl.R.P.No.593 of 2011 : 2 : As per the findings of the trial court as well as the appellate court, which approved by this court, the said amount is due to the complainant for the last 8 years. The apex court, in its recent decision in Damodar S.Prabhu V. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. In the light of facts indicated above and in view of the above settled legal position I am of the view that sentence imposed on the revision petitioner requires reconsideration and breathing time can be granted to the petitioner to compensate the complainant, but the complainant's interest has also to be protected. In the result this revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of N.I. Act as recorded by the trial court as well as the appellate court. Accordingly, the sentence of imprisonment ordered by the trial court and modified by the appellate court is again modified and reduced into one day simple imprisonment, i.e., till the rising of the court. Since the substantial sentence is reduced substantially, I am of the Crl.R.P.No.593 of 2011 : 3 : view that the sentence of fine can be imposed against the petitioner after setting aside the direction to pay compensation and provision can be made to compensate the complainant. Accordingly, in addition to the modified sentence of imprisonment, the petitioner is also sentenced to pay a fine of Rs. 1,44,000/- (rupees one lakh forty four thousand only) within two months from today. In default, he is directed to undergo simple imprisonment for a period of three months. Thus the petitioner is directed to appear before the trial court on 28.7.2011 to receive the modified sentence and to pay the above amount of fine. If there is any failure in appearing before the trial court and depositing the fine amount on the above date the trial court is free to take coercive steps to secure the presence of the petitioner and to execute the sentence and to realise the fine amount. On realisiation of the fine amount a sum of Rs.1,40,000/- (rupees one lakh forty thousand only) shall be paid to the complainant as compensation u/s 357 1(b) of Cr.P.C. and remaining amount of Rs.4,000/- (rupees four thousand only) shall be deposited in the State exchequer. The coercive steps if any pending against the Crl.R.P.No.593 of 2011 : 4 : revision petitioner shall be deferred till 28.7.2011. sd/- V.K.MOHANAN, JUDGE //True copy// P.A. To Judge. kp