IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 63 of 2006() --------------------------------------- CRA.466/2004 of SESSIONS COURT, ALAPPUZHA CC.502/2002 of JUDICIAL FIRST CLASS MAGISTRATE COURT, AMABALAPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. ------------------------------------------------------------------- ANTO ALIAS ANTAPPAN, JAP STUDIO, AMBALAPPUZHA PADINJARE NADA, AMBALAPPUZHA EAST PO, ALAPPUZHA DISTRICT. BY ADV. SRI.PRAKASH P.GEORGE RESPONDENT(S): RESPONDENT/STATE AND COMPLAINANT. --------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. DOLIDAS, AISWARYA NIVAS, KIZHAKKE NADA, AMBALAPPUZHA P.O. ALAPPUZHA DIST. R1 BY PUBLIC PROSECUTOR SRI.T.R.RAJESH R2 BY ADV. SRI.M.D.SASIKUMARAN, SRI.K.S.HARIHARAPUTHRAN, SRI.GEORGE MATHEW. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.63 OF 2006 ----------------------------------- Dated this the 7th 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, for short, the 'Act', concurrently by the two courts below. Sentence imposed against the accused is simple imprisonment for three months with direction to pay compensation of Rs.1,35,000/- with default term of rigorous imprisonment for three months. Feeling aggrieved, the accused has preferred this revision. 2. Notice given, the 2nd respondent/complainant has entered appearance. 3. When the revision came up for hearing today, the learned counsel for the petitioner/accused submitted that he has no argument on merits to assail the conviction but only against Crl.R.P.No.63/2006 2 the sentence for modification of the substantive term of imprisonment imposed, with the further request for grant of one month's time to pay whatever balance amount outstanding on the cheque amount as due to the complainant. The accused, pursuant to orders passed by this Court imposing conditions for suspending the sentence, had deposited a sum of Rs.50,000/- and giving credit to that sum, the balance outstanding on the cheque is only Rs.50,000/-, is the submission of the counsel. Compensation awarded at a higher sum be restricted to the cheque amount and the accused be given one month's time to pay the balance amount due on the cheque is the plea canvassed by the counsel. To the request for modification of the substantive term of imprisonment, no objection is raised by the learned counsel appearing for the complainant. However, he has stoutly opposed the request for reducing the quantum of compensation pointing out that the cheque involved in the case, which, on dishonour, gave rise to the prosecution and ultimately the conviction of the accused was drawn as early in 2002. Though deposit of part of the cheque amount is stated to have Crl.R.P.No.63/2006 3 been made pursuant to the conditional order passed by this Court, it is submitted by the counsel that the complainant has not received any part of the amount so far despite orders passed fixing the compensation for a higher sum than the cheque amount. No modification with respect to the quantum of compensation, in the given facts involved in the case, is called for, is the further submission of the counsel. 4. As there is no challenge against the conviction concurrently rendered by the two courts below, no dilation thereof is called for. So far as the sentence imposed against the accused whereby apart from directing him to pay the compensation as fixed, he has been directed to undergo incarceration for a period of one month, after going through the judgments rendered by the magistrate and also the sessions judge, I find, no special circumstance has been made out in the case to impose such a harsh punishment. Liability arising on dishonour of the cheque is primarily a civil liability. So much so, in the absence of exceptional circumstance justifying a harsh Crl.R.P.No.63/2006 4 punishment of imprisonment for a term, ordinarily, the offender found guilty of an offence under Section 138 of the Act arising from dishonour of a cheque issued by him due to insufficiency of funds or for the reason it exceeded arrangement with the bank, need not be visited with imprisonment for a term. The ends of justice would suffice if the imprisonment imposed as part of the punishment is limited to a day, till the rising of the court, with further direction to compensate the complainant for the injuries suffered on dishonour of the cheque issued by the accused. In that view of the matter, I find, the sentence of substantive term of imprisonment imposed against the accused can be reduced to imprisonment till the rising of the court with direction fixing the quantum of compensation. There is no merit in the request made by the counsel for the accused for modification of the compensation fixed since it is seen that the cheque was for a sum of Rs.1 lakh and it was drawn way back in 2002. What has been fixed as compensation is only Rs.1,35,000/-. No portion of the amount covered by the compensation has been obtained by the complainant till date. At this stage, after so much time lag from Crl.R.P.No.63/2006 5 the commencement of the prosecution, in fact, compensation awarded by the court has become inadequate. That is also yet another reason to hold that no modification with respect to the quantum of compensation is permissible. However, the default term of rigorous imprisonment provided for non-payment of the compensation requires modification as simple imprisonment. 5. Affirming the conviction, sentence imposed against the accused is modified and reduced to imprisonment till the rising of the court with direction to pay the compensation fixed with the default term of imprisonment modified to one of simple imprisonment. The accused is directed to appear before the magistrate court on 16.01.2012 to serve out the imprisonment till the rising of the court and to report the payment of the compensation. Amount, if any, deposited by the accused shall be given credit to in the compensation fixed. The magistrate shall keep in abeyance the execution of the sentence against the accused till the date fixed as above for his appearance, to enable him to pay the compensation. In default of his appearance and Crl.R.P.No.63/2006 6 non-payment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.No.63/2006 7