IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 Crl.Rev.Pet.No. 436 of 2011() ----------------------------------- CRA.211/2009 of SESSIONS COURT, KASARAGOD CC.55/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, (ADDL. MUNSIFF), KASARAGOD .................... REVISION PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------- HAMEED HAJI.P,AGED 61 YEARS, S/O.LATE MAMMUNHI,R/AT KALIPALLAM HOUSE, KANATHUR POST,MULIYAR VILLAGE,KASARAGOD TALUK, KASARAGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------------------- 1. STATE OF KERALA,REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. BEERAN HAJI.P,S/O.SEEDI BEARY,PAIKKA, CHURIPALLAM,NEKRAJE VILLAGE,KASARAGOD TALUK, KASARAGOD DISTRICT,PIN 671 544. R1 BY PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 436 of 2011 --------------------------------------------- Dated this the 9th day of March, 2011 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. As this Court is not inclined to interfere with the order of conviction, learned counsel for the revision petitioner submitted that the sentence of imprisonment awarded against the revision petitioner is exorbitant and unreasonable and therefore, the same may be set aside and he is ready to pay the compensation for which he requires some time. In the light of the facts and circumstances involved in the case, I am of the view that the said submission requires positive consideration. Crl.R.P.No.436 of 2011 :-2-: 3. The Apex Court, in the decision reported in Damodar.S.Prabhu v. Sayed Babalal.H. [JT 2010(4) SC 457], held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. On the strength of Ext.P1, it can be seen that whether the transaction is materialised or not, there was an attempt for the sale of the vehicle. Having regard to the facts indicated above and the legal position, I am of the view that the sentence imposed against the revision petitioner requires modification, and the revision petitioner can be granted a breathing time to pay the compensation amount. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered against the revision petitioner is modified and reduced to one day simple imprisonment, ie., till the rising of the court. The petitioner is Crl.R.P.No.436 of 2011 :-3-: granted 45 (forty five) days time to pay the compensation fixed by the trial court, confirmed by the appellate court and order of the court below with respect to the direction to pay compensation and the default sentence are confirmed. Accordingly, the revision petitioner is directed to appear before the trial court on 20th April, 2011 to receive the modified sentence and to pay the compensation amount. It is made clear that the default sentence fixed by the court below will be attracted only if there is any failure on the part of the revision petitioner to pay the compensation amount within 45 days time from today. It is made clear that the revision petitioner is free to pay the compensation amount fixed by this Court either directly to the complainant or by remitting the same before the trial court whichever subject to the satisfaction of the learned Magistrate. If there is any failure on the part of the revision petitioner to receive the sentence and to pay the compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the Crl.R.P.No.436 of 2011 :-4-: sentence. Coercive steps, if any, pending against the revision petitioner shall be deferred till 20th April,2011. V.K.MOHANAN, Judge. MBS/ Crl.R.P.No.436 of 2011 :-5-: MBS/ As this Court is not inclined to interfere with the order of conviction, learned counsel for the revision petitioner submitted that some breathing time may be granted to revision petitioner to pay the compensation amount. In the light of the facts and circumstances of the case, I am of the view that the said submission requires positive consideration. The cheque in question is dated 2.4.2004 that too for an amount of Rs.43,000/-. The trial court though sentenced the revision petitioner to undergo six months simple imprisonment, the appellate court reduced the same to one day simple imprisonment. Crl.R.P.No.436 of 2011 :-6-: Having regard to the above facts and circumstances and in the light of the decision reported ........., I am of the view that while granting some time, the compensation amount can be enhanced. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment as modified and fixed by the appellate court, the revision petitioner is directed to pay a sum of RS.60,500/- to the complainant as compensation under Section 357(3) of the CrP.C. within three months from today and in default, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to