IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 Crl.Rev.Pet.No. 595 of 2011() ----------------------------- ST NO.5206/2004 of JFCM Court, N.Paravur. Crl.A No.583/2008 of Addl. District & Sessions Court (Adhoc-(III) N.Paravur) ...................................................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- V.K.MOHANAN, AGED 49 YEARS, B.NO.16/12284, D.G.M.S. OFFICE F.A.C.T. UDYOGAMADAL., ERNAKULAM DIST. BY ADV. SRI.MANSOOR.B.H. SRI.B.H.ANSIL RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. P.K.SATHINATHAN, PAYYAPARAMBILL, PARAVOOTHARA, N. PARAVUR. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.595 OF 2011 ------------------------------------------------- Dated this the 28th 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 cheque in question is dated 07.08.2004, that too, for an amount of Rs.75,000/-. Though the courts below have concurrently found that the said amount is due to the complainant, so far no amount is seen paid to the complainant. Thus, as per the record and findings of the courts below, which Crl.R.P.NO.595 OF 2011 2 upheld by this Court, the said amount is with the revision petitioner for the last 6 years. The trial court imposed a sentence of 6 months simple imprisonment which 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. Therefore, according to me, the sentence of imprisonment ordered by the courts below requires modification and when granting some time to pay the fine amount the interest of complainant is also to be protected. Therefore, the fine amount can be enhanced slightly considering the fact that the amount is due for the last six years. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I. Act. Accordingly, the sentence of imprisonment imposed by the trial court and confirmed by the appellate court is modified and reduced into one day simple imprisonment, i.e. till the rising of the court. While modifying the sentence of imprisonment as indicated above, the sentence to pay fine is also modified and the revision petitioner is directed to pay a fine of Rs.97,500/- Crl.R.P.NO.595 OF 2011 3 within three months from today and in case of any default, the revision petitioner 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 27.05.2011 to receive the modified sentence of imprisonment and fine as ordered by this court. The learned counsel for the revision petitioner submitted that the revision petitioner is already arrested and he is in jail in pursuance, to the impugned judgment. If that be so, and in case the petitioner is arrested, the trial court is directed to issue an order of releasing him on bail for a period of three months on his executing a bond for Rs.25,000/- (Rupees Twenty five Thousand only) with two solvent sureties each for the like amount to the satisfaction of the learned Magistrate and on further condition of depositing a sum of Rs.35,000/- (Rupees Thirty five Thousand only) on the date of execution of the bond. The petitioner is further directed to deposit the remaining amount out of fine of Rs.97,500/- within three months from today. If there is any failure on the part of the revision petitioner in complying with any of the above condition, the trial court is free to take steps to execute the sentence and for realisation of fine amount. On Crl.R.P.NO.595 OF 2011 4 realisation of the fine amount a sum of Rs.95,000/- shall be paid to the complainant as compensation under Section 357(1)(b) Cr.P.C and the remaining of Rs.2,500/- shall be deposited in the State Exchequer. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm