IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 Crl.Rev.Pet.No. 1119 of 2002() ------------------------------ CRA.10/1998 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD CC.74/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- RATHNA MUHAMMED @ BASHEER, S/O. YOUSUF RAWTHER, RAJITHA MANZIL, M.H.S. ROAD, PUDUNAGARAM, CHITTUR. BY ADV. SRI.G.HARIHARAN RESPONDENTS: RESPONDENT: -------------------------- 1. CHANDRASEKHARAN, S/O. RAMA IYYER, 'HAPPY HOME', PADINJARE GRAMEM, THATHAMANGALAM, CHITTUR. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.SHRIHARI RAO FOR R1 GOVERNMENT PLEADER, SHRI PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No: 1119 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of November 2010 O R D E R This Revision petition is filed by the accused in C.C. No.74 of 1995 on the file of Judicial First Class Magistrate Court, Chittoor challenging the conviction and sentence passed against the offence punishable under Section 138 of N.I. Act. The cheque amount was for Rs.1,70,000/-. In the Trial court the accused was convicted and sentenced under Section 138 of N.I. Act and sentenced to undergo simple imprisonment for a period of 3 months and to pay a fine of Rs. 1,75,000/- and in default to undergo simple imprisonment for a further period of one month and if the fine amount is realised from the accused, an amount of Rs.1,70,000/- shall be given to the complainant as compensation under Section 357(3) Cr.P.C. The accused filed Cr.Appeal No.l0 of 1998 before the Additional Sessions Judge, Palakkad, which was allowed in part and conviction of the accused under Section 138 of N.I. Act was confirmed, but the sentence was set aside and the matter was Crl.R.P. No: 1119 of 2002 :2: remanded back to the trial court to pass appropriate orders on the question of sentence and compensation if any payable. Against that judgment, the accused/ appellant filed this Cr.R.P. 2. Heard the learned counsel for the revision petitioner and learned counsel for the first respondent and also the learned public prosecutor. 3. The learned counsel appearing for the revision petitioner reiterated the same contention raised before the Trial Court and the appellate court. Learned counsel for the complainant supported the judgment of the court below. 4. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant, that the complainant had validly complied with clauses (a) and (b) of the proviso to Section 138 of the N.I. Act and that the Revision petitioner/accused failed to make the payment within 15 days of receipt of the statutory notice. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the conviction. The said conviction has been recorded after a careful evaluation of the oral and documentary evidence. I do not Crl.R.P. No: 1119 of 2002 :3: find any error, illegality or impropriety in the conviction so recorded concurrently by the courts below and the same is hereby confirmed. 5. The learned counsel for the revision petitioner submitted that the appellate court ought to have modified the sentence in accordance with law and there was no necessity to the appellate court to remand the case for the purpose of passing appropriate sentence. Since the appellate court has the power to modify or reduce the sentence, I am of the view that the judgment of the appellate court remanding the matter to trial court for the purpose of considering the question of sentence has to be set aside. 6. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.1,75,000/- would meet the ends of justice. The said fine shall be paid as compensation under Section 357(1) of Cr.P.C. The Revision petitioner is permitted either to Crl.R.P. No: 1119 of 2002 :4: deposit the said fine amount before the Court below or directly pay the compensation to the complainant within three months from today and to produce a memo to that effect before the Trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforesaid period, he shall suffer simple imprisonment for three months by way of default sentence. The amount if any deposited in the trial court by the accused can be given credit to. 7. In the result this Cr. Revision petition is allowed in part and the judgment of Cr.Appeal 10 of 1998 on the file of Additional Sessions Fast Track Court - 2, Palakkad in remanding the case to the court below is set aside and the conviction of the accused under Section 138 of N.I. Act is confirmed and the sentence is modified as above. M. L. JOSEPH FRANCIS ( Judge) dl/