IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 2774 of 2011() ------------------------------ CRA.4/2004 of ADDL.SESSIONS COURT (ADHOC)-III, THALASSERY CC.435/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVISION PETITIONER(S): APPELLANT:ACCUSED: ---------------------------------------------------------------------------- K.M.MANOHARAN , S/O.NARAYANAN NAMBIAR, AGED 47 YEARS, KIZHAKKE MALLIKKAN, NEAR AKLIYATH SHIVA TEMPLE, AZHIKODE, KANNUR DT. BY ADV. SRI.C.K.SREEJITH RESPONDENT(S): RESPONDENTS/COMPLAINANTS: ------------------------------------------------------------------------------ 1. V.P.PRADEEP, S/O.JANARDHANAN, 7, AZAD NAGAR HOUSING COLONY, P.O.MUNDAYAD, KANNUR. 2. STATE OF KERALA,REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.GEORGE MATHEWS, SRI.P.BHARATHAN. R2 BY PUBLIC PROSECUTOR SMT. KOCHUMOL KODUVATH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.No.2774 of 2011 ----------------------------------------------- Dated this the 2nd day of December, 2011 O R D E R Revision is by the accused in a cheque case, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, 1881 {for short ‘the Act’} concurrently by two courts below. Sentence imposed against the accused as affirmed by the Sessions Judge in appeal is simple imprisonment for six months with direction to pay a sum of Rs.45,000/- as compensation to the complainant with default term of simple imprisonment for three months more. 2. Notice given, the 1st respondent/ complainant has entered appearance. 3. The revision coming up for consideration today, the learned counsel for the accused submitted that he has no arguments on merits to assail the conviction, but only against the sentence imposing substantive term of imprisonment. Going through the judgments rendered by the magistrate and also the Crl.R.P.No.2774 of 2011 :: 2 :: Sessions Judge, I find that no special circumstance has been made out in the case to justify a harsh punishment of incarceration of the petitioner/accused for a period of six months as imposed concurrently by the two courts below for the offence with which he was found guilty and convicted. The cheque involved in the case bounced for the reason that the account, when it was presented, had already been closed by the accused. That circumstance by itself is not sufficient warranting a prison term against the accused, the drawer of the instrument, where he is found guilty of the offence under Section 138 of the Act. Dishonour of the cheque constitutes a civil liability, but for its inclusion as a penal offence by way of amendment to the Act. That being so, in the absence of exceptional circumstance, the outlook of the court in awarding sentence against the drawer of a cheque, who is found guilty of the offence under Section 138 of the Act should be more to compensate Crl.R.P.No.2774 of 2011 :: 3 :: the complainant than to be punitive. In that view of the matter, I find, the sentence imposing substantive term of imprisonment against the accused can be modified and reduced to imprisonment till the rising of the court, retaining the compensation awarded with the default term of imprisonment, but that too reduced to simple imprisonment for one month. 4. Affirming the conviction, the sentence imposed against the accused is modified and reduced to imprisonment till the rising of the court, retaining the direction to pay compensation of the sum fixed with and reducing the default term of imprisonment thereof to simple imprisonment for one month. Petitioner/accused shall appear before the magistrate on 19.01.2012, to serve out the imprisonment till the rising of the court and to report the payment of compensation. The magistrate shall keep in abeyance the execution of the sentence till the date fixed as above for his appearance, Crl.R.P.No.2774 of 2011 :: 4 :: to enable him to pay the compensation within such period. In default of his appearance and non-payment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.