IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 Crl.Rev.Pet.No. 2716 of 2005() -------------------------------------------- CRA.176/2000 of ADDL. DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK-II, PATHANAMTHITTA. CC.335/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI .................... REVN. PETITIONERS/APPELLANTS IN CRL.APPEAL/ ACCUSED IN C.C.NO.335/1998.: ---------------------------------------------------------------------------- JACOB THOMAS, AGED 54, CHIRACKLAKATHU HOUSE, MANIMALA, KANJIRAPPALLY, KOTTAYAM. BY ADV. SRI.VARGHESE C.KURIAKOSE, SRI.PRAVEEN K. JOY. RESPONDENTS/RESPONDENTS IN CRL.APPEAL/COMPLAINANT & STATE: ------------------------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RACHEL VARGHESE, W/O.VARGHESE, ASSUNTHU BHAVAN, MAMPARA, PERUNADU. R1 BY PUBLIC PROSECUTOR SMT.SUMANGALA P.N. R2 BY ADV. SRI.MVS.NAMBOOTHIRY. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. V.K.MOHANAN, J. ------------------------------------------ CRL.R.P No.2716 of 2005 ---------------------------------------- Dated the 13th day of October, 2010 ORDER The challenge in this Crl.R.P is against the conviction and sentence imposed against the revision petitioner who is the accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act. 2. When this Crl.R.P came up for admission on 27.10.2005, this Court by order dated 27.10.2005 in Crl.M.A.No.17604/2005 suspended the execution of the sentence on condition that the petitioner deposits a sum of Rs.10,000/- within three months from that date. Accordingly, the revision petitioner has deposited the said amount. Now the both counsel for the revision petitioner and the 2nd respondent submitted that this Crl.R.P may be closed upholding the conviction recorded by the courts below and reducing the sentence of fine with permission to withdraw the amount deposited by the revision petitioner in the trial court in favour of the 2nd respondent. 3. I have carefully considered the submission of the counsel on both sides and I have also gone through the CRL.RP.NO.2716/05 :-2-: judgments of the courts below. 4. The learned counsel for the 2nd respondent submitted that the 2nd respondent is now at the age of 74 years and she may be permitted to withdraw the amount already deposited by the revision petitioner and she is not concerned with the sentence imposed against the revision petitioner. 5. The cheque in question covers an amount of Rs.10,000/-. 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 , I am of the view that the sentence of imprisonment ordered by the courts below against the revision petitioner can be modified and reduced and in modification of the amount fixed by the courts below, towards the compensation amount, can be fixed as equal to the cheque amount and the same can be permitted to withdraw by the 2nd respondent. 6. In the result, this Crl.R.P. is disposed confirming the conviction of the revision petitioner under section 138 of the CRL.RP.NO.2716/05 :-3-: NI Act as recorded by the courts below. Accordingly, in modification of the sentence imposed against the revision petitioner by the courts below, the same is reduced into one day simple imprisonment i.e. till rising of the court and the revision petitioner is further directed to pay a sum of Rs.10,000/- being the cheque amount as compensation to the 2nd respondent/the complainant, within one month from today and in default of payment of the compensation amount, the revision petitioner is directed to undergo simple imprisonment for a period of one month. Accordingly, the revision petitioner is directed to appear before the trial court on 15th November, 2010 to receive the modified sentence and to pay the compensation amount. If there is any failure on the part of the revision petitioner in appearing before the trial court, on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner to execute the modified sentence. It is reported that the revision petitioner has already deposited a sum of Rs.10,000/- in compliance of the order of this Court dated 27.10.2005 in Crl.M.A.No.17604/2005 and if CRL.RP.NO.2716/05 :-4-: the said amount is deposited and retained in the trial court, it is made clear that, the revision petitioner need not deposit any more amount towards the compliance of this order. It is also ordered that on an application at the instance of the 2nd respondent/the complainant, a sum of Rs.10,000/- which is already deposited in the trial court shall be released in favour of the complainant forthwith. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. Coercive step, if any, pending against the revision petitioner shall be deferred till 15.11.2010. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE. kvm/-