IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 Crl.Rev.Pet.No. 957 of 2011() ---------------------------- CRL.A. NO. 781/2009 OF ADDL. DISTRICT & SESSIONS COURT (ADHOC-III), N. PARAVUR CC.NO. 1340/06 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA ...................... REVISION PETITIONER/APPELLANT/ACCUSED: --------------------------------------------------------------------- SUNIL B. @ SUNIL B.THEKKUMTHALA, AGED 48 YEARS, S/O.BALAKRISHNAN, THEKKUMTHALA HOUSE, PARVATHY BHAVAN, ATHANI, NEDUMBASSERY VILLAGE. BY ADV. SRI. SYAM J. SAM RESPONDENTS / COMPLAINANT / STATE : -------------------------------------------------------------- 1. THANKAKUMAR, S/O.BALAKRISHNAN, THATTAMPARAMBIL HOUSE, SREE LAKSHI, ATHANI - 683585. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-31. R1 BY ADV. SRI.BAIJU JOHN R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J ----------------------------------- Crl.R.P.No.957 of 2011 ---------------------------------------- Dated this the 23rd day of May, 2011 ORDER The accused in a prosecution for the offence under Section 138 of the NI Act is the revision petitioner, as he is aggrieved by the conviction and sentence imposed against him by the courts below. 2. Heard the counsel for the petitioner as well as the respondents. 3. Learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered against the revision petitioner is unreasonable and exorbitant and therefore a lenient view may be taken and the petitioner may be granted sufficient time to compensate the complainant. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission of the learned counsel requires positive consideration. 4. The cheque in question is dated 19.7.2006, that too, for an amount of Rs.3,00,000/-. As per the findings of the courts below which approved by this Court, the said amount is due to the complainant. Thus, as per the record and findings of the courts below, which upheld by this Court, the said amount is with the revision petitioner for the last five years. The apex court, in Crl.R.P.No.957 of 2011 2 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. In the light of the above facts and the settled legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner requires re-consideration, but at the same time the petitioner can be sentenced to pay fine and the amount to be fixed after considering the fact that the cheque amount is in due for the last five years. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the NI Act as recorded by the trial court as well as the appellate court. Accordingly, the sentence of imprisonment ordered against the revision petitioner is modified and reduced into one day simple imprisonment i.e., till the rising of the court. In addition to the above modified sentence of imprisonment the revision petitioner is also sentenced to pay a fine of Rs.4,05,000/- within three months from today and in default he is directed to undergo simple imprisonment for a period of 6 months. Accordingly, the revision petitioner is directed to appear before the trial court Crl.R.P.No.957 of 2011 3 on 26.08.2011 to receive the modified sentence and to pay the fine amount as fixed by this Court. If there is any failure on the part of the revision petitioner in appearing before the courts below and depositing the fine amount on the date fixed above, the trial court is free to take steps to execute the sentence and for realisation of fine amount. On realisation of the fine amount a sum of Rs.4,00,000/- shall be paid to the complainant as compensation under Section 357(1)(b) of Cr.P.C and the remaining of Rs.5,000/- shall be deposited in the State Exchequer. Coercive steps if any pending against the revision petitioner shall be deferred till 26th August, 2011. V.K.MOHANAN, JUDGE pm/