IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 19TH DAY OF DECEMBER 2011/28THAGRAHAYANA 1933 CRRP.No. 2944 of 2011 -------------------------------- CRL.APPEAL.NO.184/2010 OF SESSIONS COURT,KOLLAM CC.1182/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM ................................................................................................................................... REVISION PETITIONER / APPELLANT / ACCUSED: SHAH, AGED 37 YEARS, S/O. SIVANANDAN, SREE DHANYA, TRA NO.94, THEKKEVILA (PO), MUNDAKKAL VILLAGE, KOLLAM DISTRICT. BY ADV.SRI.C.R.SIVAKUMAR RESPONDENTS / RESPONDENTS / COMPLAINANT: 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. S. REMA, D/O. SADANANDAN, SREEDHAR NIVAS, MUNDAKKAL, KALLAM DISTRCIT, PIN-673 307. R1 BY PUBLIC PROSECUTOR SMT. SEENA R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/- S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2944 OF 2011 ----------------------------------------- Dated this the 19th day of December 2011 ORDER Revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, 'NI Act'), concurrently by the two courts below. Sentence imposed against the accused, as modified by the sessions judge in appeal, is simple imprisonment for 15 days with direction to pay a sum of `.1,15,000/- as compensation to the complainant with default term of simple imprisonment for two months more. 2. When the revision came up for consideration today, the learned counsel for the petitioner/accused submitted that he has no challenge against the conviction, but, only against the sentence awarding substantive term of imprisonment with a request to be made for grant of two months time to pay the compensation and, thus, avoid the default term of imprisonment. 3. Going through the judgments rendered by the learned magistrate and also the sessions judge, I find that no exceptional circumstance has been made out in the case warranting imposition of a harsh punishment directing imprisonment of the petitioner/accused Crl.R.P No.2944 OF 2011 2 for the term fixed. Liability arising under a cheque being purely a civil liability, in the absence of special circumstances, the drawer of the instrument, on his conviction for the offence under Section 138 of the NI Act need not be directed to suffer a period of incarceration. Outlook of the court in awarding sentence for such offence shall be more to compensate the complainant than be punitive. So much so, I find, the substantive term of imprisonment imposed against the accused can be reduced and modified as imprisonment till the rising of the court, retaining the compensation with the default term. So far as the request made by the counsel for grant of two months time for payment, I find, the cheque amount is only `.1,00,000/-. But, the courts below have awarded compensation of `.1,15,000/- to the complainant. Taking that factor into consideration, I find, the time requested for can be granted. 4. Affirming the conviction of the accused, sentence of imprisonment imposed against him is reduced to imprisonment till the rising of the court retaining the compensation fixed with the default term of imprisonment. Petitioner is directed to appear before the magistrate on 01-03-2012 to serve out the imprisonment till the rising of the court, and to report the payment of compensation. Magistrate is directed to keep in abeyance the execution of sentence till the date Crl.R.P No.2944 OF 2011 3 fixed as above for his appearance, to enable him to pay the compensation within such period. In default of his appearance and nonpayment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge