IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 Crl.Rev.Pet.No. 764 of 2011() ----------------------------- CRA.672/2009 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD ST.2954/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER(S): ACCUSED ---------------------------- AHEMD THAYYIL, AGED 44 YEARS, S/O.THAYYI MUHAMMED HAJI, OPP: TELEPHONE EXCHANGE, AMBADI BUILDINGS, T.B.ROAD, PALAKKAD. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. SYNDICATE BANK, MAIN BRANCH, T.B.ROAD, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.764 OF 2011 ------------------------------------------------- Dated this the 23rd day of March, 2011. ORDER The challenge in this Crl.R.P. is against the conviction and sentence imposed on the revision petitioner who is the accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act. 2. As this Court is not inclined to interfere with the order of conviction, the 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. 3. The cheque in question is dated 20.12.2007, that too, for an amount of Rs.80,000/-. Though the courts below have concurrently found that the cheque in question issued towards the discharge of the liability due to the complainant and the appeal was disposed on 19..11.2010, so far no amount is seen Crl.R.P.NO.764 OF 2011 2 paid. In this juncture, it is also relevant to note that though the trial court has imposed the sentence six months simple imprisonment, the appellate court has set aside the substantial sentence and the sentence is confined to fine only. 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, considering the above facts and circumstances and the submission of the learned counsel for the petitioner, I am of the view that while granting breathing time to the petitioner to pay the fine amount. The fine amount can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I. Act as recorded by the courts below. Accordingly, while confirming the judgment of the appellate court setting aside the substantial sentence and confirming the sentence to fine only, the fine amount as well as the default sentence are enhanced slightly. Accordingly, the revision petitioner is sentenced to pay a fine of Rs.5,05,000/- within three months from today and in default he is directed to undergo simple imprisonment for a Crl.R.P.NO.764 OF 2011 3 period of 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on 23.06.2011 to receive the modified sentence of imprisonment and fine as ordered by this court. If there is any failure on the part of the revision petitioner in complying with any of the above condition, 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.5,00,000/- shall be paid to the complainant as compensation under Section 357(1)(b) 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 23rd June, 2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm