IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 Crl.Rev.Pet.No. 454 of 2011() ----------------------------- CRA.432/2005 of ADDL. SESSIONS COURT (ADHOC)-II, TRIVANDRUM CC.487/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... REVISION PETITIONER/APPELLANTS/ACCUSED: ------------------------------------------------------------------------- GILBERT KERNOLY, AGED 50 YEARS, S/O.FELIX GOMAZ @ KERNOLY, VALIAVEETTIL HOUSE, THUMBA, PALLITHURA POST, THIRUVANANTHAPURAM. BY ADV. SRI.K.V.SABU RESPONDENT(S): RESPONDENTS/COMPLAINANT/STATE: -------------------------------------------------------------------------------------- 1. JOSEPH B.GOMEZ, S/O.BERNARD GOMEZ, ALPHA DALE, ST.ANDREW'S, ST.XAVIER'S COLLEGE POST, THIRUVANANTHAPURAM, PIN-695 004. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.BLAZE K.JOSE R2 BY PUBLIC PROSECUTOR SMT. REKHA C.NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN,J ------------------------------- Crl.R.P.NO.454 OF 2011 ------------------------------------------------- Dated this the 18th day of February, 2011. ORDER The challenge in this Crl.R.P. is against the conviction and sentence imposed on the revision petitioner who is the accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act. 2. As this Court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered against the revision petitioner is unreasonable and exorbitant and therefore a lenient view may be taken and the petitioner may be granted sufficient time to compensate the complainant. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission of the learned counsel requires positive consideration. 3. The learned counsel for the contesting respondent submitted that the revision petitioner is a film producer and even though the present revision petition was filed with the delay of 1770 days the respondent has no objection in modifying the sentence but the respondent/complainant shall be compensated adequately. 4. I have carefully consider the contentions raised by the Crl.R.P.NO.454 OF 2011 2 learned counsel for the petitioner as well as the contesting respondent. Admittedly, the present revision petition was filed belately and there was a delay of 1770 days which was condoned on terms. The cheques in question pertain to the year 2002 and that too, for an amount of Rs.2,50,000/-. Thus as per the record and findings of the courts below, which upheld by this Court, the said amount is with the revision petitioner for the last 9 years. On conviction, the trial court imposed a sentence of simple imprisonment for 9 months and the same was confirmed by the appellate court. 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 the facts indicated above and the settled legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner requires reconsideration and at the very same time, the interest of the complainant 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 the Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered against the revision petitioner is modified and reduced into one day simple Crl.R.P.NO.454 OF 2011 3 imprisonment that till the rising of the court. The direction to pay compensation under Section 357(3) imposed by the courts below is set aside. Thus, in addition to one day simple imprisonment the petitioner is sentenced to pay a fine of Rs.3,50,000/- within three months from today, in default he is directed to undergo simple imprisonment for a period of 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on 20th May, 2011 to receive the modified sentence and to deposit the fine amount. If there is any failure on the part of the revision petitioner in appearing before the trial court to receive the sentence and to pay the fine amount on the date of his appearance, the trial court is free to take coercive steps to secure his presence and to execute the sentence and for realization of fine amount. On realization of the fine amount a sum of Rs.3,45,000/- shall be paid to the complainant under Section 357(1)(b) of Cr.P.C and the remaining amount of Rs.5,000/- shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 20th May, 2011 This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm