IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 6TH DAY OF DECEMBER 2011/15TH AGRAHAYANA 1933 CRRP.No. 2566 of 2011 ( ) ------------------ CRA.18/2008 OF ADDL. DISTRICT & SESSIONS COURT, FAST TRACK-II, THIRUVANANTHAPURAM. CC.167/2005 of JMFC-V, TVM (SPL.COURT-MARKLIST CASES. ----------- REVISION PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- 1 . S.MOHANAN NAIR, S/O. K.SIVASANKARA PILLAI LIBERTY FILMS, VISAKH COMPLEX, NEAR NEW THEATRE, THYCAUD P.O. THIRUVANANTHAPURAM. BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW SRI.DIPU JAMES RESPONDENTS/COMPLAINANTS/ COMPLAINANT & STATE ----------------------------------------------------------------- 1. K.SANKARAN, RESIDING AT QUARTER NO.16/191 GOVERNMENT QUARTERS, RAJEEV NAGAR, KARAMANA POST THIRUVANANTHAPURAM-695 002. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 31. BY PUBLIC PROSECUTOR SMT. SEENA R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.No.2566 of 2011 ----------------------------------------------- Dated this the 6th day of December, 2011 O R D E R Revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, 1881 {for short ‘the Act’} concurrently by two courts below. Sentence imposed against the accused, as modified by the Sessions Judge in appeal, is simple imprisonment for three months with direction to pay the cheque amount, a sum of Rs.3,50,000/-, as compensation to the complainant, with default term of simple imprisonment for 15 days. 2. Notice on the revision was ordered to the complainant, but, after service, he has elected to remain absent. 3. The learned counsel for the petitioner/ accused submitted that he has no arguments on merits to assail the conviction, but only against the sentence seeking modification and reduction of Crl.R.P.No.2566 of 2011 :: 2 :: the substantive term of imprisonment imposed with a request to be made for grant of some more time to pay the compensation and, thus, to avoid the default term of imprisonment. 4. Going through the judgments rendered by the magistrate and the Sessions Judge, I find no exceptional circumstance has been made out to justify the imposition of a harsh punishment directing imprisonment for a substantive term of the accused an offender found guilty of the offence under Section 138 of the Act. No doubt, the drawer of the instrument, on its dishonour, when prosecuted under Section 138 of the Act cannot canvass a defence that the dishonour of the cheque was for reasons beyond his control and he never intended so when the instrument was issued. But, that does not in any way prevent the court from taking note of the reality that in commercial transactions cheques are issued with no intention Crl.R.P.No.2566 of 2011 :: 3 :: to defraud the person to whom it was given and, often, for reasons beyond control of the drawer the instrument get dishonoured. Further more, the liability arising from dishonour of a cheque is primarily a civil liability, though it has been made an offence by amendment of the Act. Such being the position, in the absence of exceptional circumstance, an offender found guilty and convicted under Section 138 of the Act need not be mulcted with a term of incarceration since the outlook of the court should be more to compensate the complainant, than be punitive. In that view of the matter, I find, the substantive term of imprisonment imposed against the accused can be modified and reduced to imprisonment till the rising of the court retaining the compensation awarded with the default term of imprisonment. 5. So far as the request made by the counsel for further time to pay the compensation fixed, it is Crl.R.P.No.2566 of 2011 :: 4 :: seen that the cheque involved in the case is dated 22.07.2005 and the amount covered by that instrument is Rs.3,50,000/-. The amount covered by the cheque alone has been fixed as compensation payable by the accused. When that be so, prima facie, there is no merit in the request for further time to pay the compensation. However, the learned counsel submits that pursuant to the conditional order passed by this court, he has already deposited a sum of Rs.75,000/- to sustain the order of suspension of his sentence. He also submits that the accused is facing severe financial difficulties and unless a breathing time is given, he has no other go but to suffer the default term of imprisonment. Considering the submissions, I find, a short time, as indicated hereunder, can be provided for payment of such compensation. 6. Affirming the conviction and sentence, the petitioner/accused is directed to appear before Crl.R.P.No.2566 of 2011 :: 5 :: the magistrate on 15.02.2012, to serve out the imprisonment till the rising of the court and to report the payment of compensation. Amount, if any, deposited shall be given credit to in the compensation fixed. The magistrate shall keep in abeyance the execution of the sentence till the date fixed as above for his appearance, to enable him to pay the compensation within such period. In default of his appearance and non-payment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.