IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 Crl.Rev.Pet.No. 3292 of 2010 () ------------------------------ ( CRA.89/2009 of ADDL. DIST. & SESSIONS COURT(ADHOCIII), PATHANAMTHITTA CC.31/2008 OF JUDL.MAGISTRATE OF FIRST CLASS MAGISTRATE COURT, ADOOR) .................... REVN. PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------- JOBY GEORGE, KOPPARA PUTHEN VEETIL, ANGADICKAL VADAKKEKARA MURI, ANGADICKAL VILLAGE, ADOOR TALUK. BY ADV. SMT.R.DYANA RESPONDENTS/RESPONDENTS/COMPLAINANTS ---------------------------------------------------------------------- 1. HARIKUMAR.K.K., KULATHINTE THEKKETHIL VEETTIL, PARAKKARA MURI, PANDALARNTHEKKEKARA VILLAGE, ADOOR TALUK. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SMT.SUMANGALA.P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3292 of 2010 ------------------------------- Dated this the 9th day of November, 2010. O R D E R The accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below. 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 imposed by the courts below is unreasonable and exorbitant, which may be set aside and it is also the submission of the learned counsel that the petitioner is ready to compensate the complainant, for which he require some time. 3. I have carefully considered the above submissions and according to me, the said submission can be considered positively but subject to other relevant inputs involved in the case. The cheque in question is dated 2.3.2006 that too for an amount of Rs.95,000/-. As per the findings of the court below, the said 2 Crl. R.P.No.3292 of 2010 amount, which belonged to the complainant, is with the revision petitioner for the last 4 years and so far the said liability has not discharged by the revision petitioner. It is also relevant to note that, the apex court in a recent 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. In the light of the above settled legal position and the facts referred above, I am of the view that, the sentence of imprisonment ordered against the revision petitioner requires reconsideration and at the same time, in the light of the decision of the apex court cited supra, the interest of the complainant has also to be saved. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, in modification of the sentence of imprisonment ordered by the courts below, the same is reduced to one day 3 Crl. R.P.No.3292 of 2010 simple imprisonment ie., till the rising of the court. As the one year imprisonment has substantially reduced, I am of the view that instead of directing to pay compensation, the revision petitioner can be sentenced to pay fine and out of that amount, the complainant can be compensated. Accordingly, the revision petitioner is sentenced to pay a fine of Rs.1,10,000/-, within 3 months from today and in case of default in paying the fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 9.2.2011, to receive the modified sentence and to pay the fine amount as fixed by this court. In case, any failure on the part of the revision petitioner in appearing and in paying the fine amount as ordered above, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against him. On realisation of the fine amount, a sum of Rs.1,05,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of 4 Crl. R.P.No.3292 of 2010 Cr.P.C. and the remaining amount shall be paid to the State Exchequer. The execution of warrant if any, pending against the revision petitioner shall be deferred till 9.2.2011. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/