IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 Crl.Rev.Pet.No. 1796 of 2011() ------------------------------------- CRA.448/2010 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD ST.1148/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------ ASHARAF, S/O.KAJA, AGALI VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.VENUGOPAL (1086/92) RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE -------------------------------------------------------------------- 1. GASALFUR, S/O.ALAVI, KANNATHODI VEEDU, KUNTHIPUZHA, MANNARKKAD, PALAKKAD DISTRICT - 686 019. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE ADVS.SRI.P.M.RAFIQ SRI.V.C.SARATH R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1796 OF 2011 ----------------------------------------- Dated this the 10th day of August 2011 ORDER Revision is by the accused convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently by the two inferior courts. Conviction of the accused by the learned Magistrate stands confirmed by the learned Sessions Judge dismissing his appeal. When the revision came up for consideration, the learned counsel for the revision petitioner/accused submitted that no arguments on merits is sought to be addressed, but only a challenge against the sentence to modify the substantive term of imprisonment and also a request for extension of time to pay the compensation awarded. Having regard to the submissions made by the counsel as aforesaid, no dilation on the conviction imposed is called for. So far as the sentence imposed against the petitioner, it is seen, the trial Magistrate has imposed a punishment of simple imprisonment for one year apart from directing the complainant to pay the fine, the cheque amount, with default term. In appeal, the learned Sessions Judge has modified the substantive term of imprisonment reducing it to three months, retaining the fine imposed with default term. So far as the offence imputed under Section 138 of Crl.R.P No.1796 OF 2011 - 2 - the NI Act, the imposition of a prison term as against the offender found guilty of such offence is not the mandate of the statute. True, penal provisions have been incorporated in the statute to give sanctity to the commercial use of cheques. Still the dishonour of the cheque may arise for reasons beyond the contemplation of the drawer at the time of issue of that instrument. That also being taken into account, imposition of a prison term for a period as against the offender is not called for. I do not find any exceptional circumstance in the present case to sustain the sentence of imprisonment for three months imposed against the petitioner/accused. In that view of the matter, sentence requires to be modified, limiting it to imprisonment for a day, till the rising of the court, retaining the fine amount with the default term as confirmed by the learned Sessions Judge. 2. The request made by the learned counsel for extension of time to pay the compensation has to be looked into with reference to the date of issue of the cheque, the dishonour of which had given rise to his prosecution and ultimately led to the conviction. Cheque in the present case is dated 25-01-2006. When that be so, there is no merit in the request made for further extension of time. However, taking note of the submissions made by the counsel, the Magistrate concerned is directed to keep in abeyance the execution of the sentence for a period of six weeks from today. Crl.R.P No.1796 OF 2011 - 3 - 3. Conviction is affirmed, but sentence is modified limiting the imprisonment to a day, till the rising of the court, retaining the fine with default term of imprisonment. Petitioner is directed to appear before the Magistrate concerned on 10-10-2011 to serve out the substantive term of imprisonment for one day, till the rising of the court, and to report the payment of fine. In default of his appearance and nonpayment of the fine as directed, the Magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to judge