IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 Crl.Rev.Pet.No. 851 of 2011() ----------------------------- CRA.270/2009 of ADDL.SESSIONS COURT-II, KOZHIKODE STC.456/2008 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- N.M.RAGHAVAN, S/O.GOVINDAN NAIR, THANTHONIKANDAY HOUSE, PERAMBRA P.O., KOZHIKODE DISTRICT. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. DHANYA A.K., W/O.VEERANDRAKUMAR, ACHARUKUNNUMMAL HOUSE, NANMINDA, KOZHIKODE DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.851 OF 2011 ------------------------------------------------- Dated this the 28th day of March, 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 12.01.2008, that too, for an amount of Rs.1,00,000/-. Though the courts below have concurrently found that the said amount is due to the complainant, and though the findings are up held by this Court, but no payment is made. It is also relevant to note that the Crl.R.P.NO.851 OF 2011 2 appellate court judgment is dated 01.10.2010 but so far no amount is seen paid to the complainant and now the counsel for the petitioner seeks further time. 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. Having regard to the facts and circumstances indicated above and in view of the settled position, I am of the view that, the sentence of imprisonment ordered by the courts below requires re-consideration. But at the same time, the interest of complainant is 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 N.I. Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered 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, but the direction to pay compensation is set aside and the accused, in addition to the above the sentence of imprisonment, is sentenced to pay fine of Rs.1,15,000/- within three months from Crl.R.P.NO.851 OF 2011 3 today and 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 28.06.2011 to receive the modified sentence of imprisonment and fine as ordered by this court. On realisation of the fine amount a sum of Rs.1,12,500/- 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. Coercive steps if any pending against the revision petitioner shall be deferred till 28th June, 2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm