IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 Crl.Rev.Pet.No. 1411 of 2011 ------------------------------------ (CRA.399/2007 of ADDITIONAL SESSIONS COURT (ADHOC-II), KASARAGOD CC.1116/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDURG) .................... REVN. PETITIONER(S): REVISION PETITIONER ------------------------------- DIVYANATHA SHETTY, AGED 41 YEARS, S/O.ANTHAPPA SHETTY, R/A.KAVU HOUSE, KAVU VILLAGE, PUTHUR TALUK, D.K.DISTRICT,KARNATAKA STATE BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS(S): ------------------------- 1. GANESH PRASAD, AGED 34 YEARS, S/O.RATNAKARAN, R/A.SREEDEVI NILAYAM,KANHANGAD,P.O.KANHANGAD, HOSDURG TALUK,KASARAGOD DISTRICT 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 1411 of 2011 --------------------------------------------- Dated this the 7th day of June, 2011 O R D E R The challenge in this Crl.R.P. is against the conviction and sentence imposed against the revision petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act'). 2. As this Court is not inclined to interfere with the order of conviction, learned counsel for the revision petitioner submitted that the sentence imposed against the revision petitioner is unreasonable. It is also the submission of the learned counsel that some breathing time may be granted to the revision petitioner to compensate the complainant. 3. In the present case, the cheque in question is dated 9.8.2005, that too for an amount of `.80,000/-. As per the findings of the courts below which are approved by this Court, the said amount is originally belonged to the complainant and the same is with the Crl.R.PNO. 1411 of 2011 :-2-: revision petitioner for the last six years. But, it is also relevant to note that the Honourable Apex Court in the decision reported in Damodar.S.Prabhu v. Sayed Babalal.H. [JT 2010(4) SC 457] has held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. Considering the above facts and the above settled legal position, I am of the view that the sentence imposed against the revision petitioner requires modification and at the very same time, the interest of the complainant also has to be protected. 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 by the trial court and modified by the appellate court is further modified and reduced to one day simple imprisonment, i.e., till the rising of the court. While confirming the sentence to pay fine as ordered by the appellate court, the fine amount Crl.R.PNO. 1411 of 2011 :-3-: is enhanced and accordingly, the revision petitioner is sentenced to pay fine of `.1,02,000/- (Rupees One Lakh Two Thousand only) within two months from today and in default, he is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 8th August,2011 to receive the modified sentence ordered by this Court and to deposit the above enhanced fine amount. In case of any failure on the part of the revision petitioner in appearing before the trial court on the above date to receive the modified sentence fixed by this Court and to deposit the fine amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence and to realise the fine. On realisation of the fine amount, a sum of `.1,00,000/- shall be paid to the complainant as compensation under Section 357(1)(b) of the Cr.P.C. and the remaining amount shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred Crl.R.PNO. 1411 of 2011 :-4-: till 8th August,2011. The Criminal Revision Petition is disposed of as above. V.K.MOHANAN, Judge. MBS/