IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 Crl.Rev.Pet.No. 775 of 2011() ----------------------------- CRA.373/2009 of ADDL. SESSIONS COURT (ADHOC), KOZHIKODE STC.692/2008 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- AJITHAN N.K., AGED 47 YEARS, S/O.NARAYANAN, ELAMAKANDY HOUSE, ULLIARY P.O., KOZHIKODE DISTRICT. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. CHANDRAN.K., AGED 72 YEARS, S/O.KUNJIKKANNAN, DEEPTHI HOUSE, NANMANDA P.O., PIN 673 613, KOZHIKODE DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.775 OF 2011 ------------------------------------------------- Dated this the 16th 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 01.04.2008, that too, for an amount of Rs.1,25,000/-. As per the findings of the trial court as well as the appellate court, which approved by this Court, the said amount is due to the complainant for the last 2 years. The apex court, in its recent decision in Damodar Crl.R.P.NO.775 OF 2011 2 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. According to me the sentence of imprisonment ordered by the courts below requires modification. But the very same time the interest of the complainant has also to be protected and to ensure that the amount is paid at the earliest. 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, the sentence of imprisonment ordered by the courts below is modified and reduced into one day simple imprisonment i.e till the rising of the court. In the light of the modification of the substantial sentence, I am of the view that the direction to pay compensation can be set aside and instead of that the petitioner can be sentenced to pay fine and accordingly, the revision petitioner is sentenced to pay a fine of Rs. 1,30,000/- within one month from today. In default he is directed to undergo simple imprisonment for three months. Accordingly, the revision petitioner is directed to appear before the trial court on 18.04.2011 to receive the modified sentence of imprisonment Crl.R.P.NO.775 OF 2011 3 and to deposit the above amount of fine. If there is any failure from the part of the petitioner in appearing before the courts below on 18.04.2011 to receive the sentence and depositing the fine amount, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the fine amount. On realisation of the fine amount a sum of Rs. 1,27,500/- shall be paid to the complainant as compensation under Section 357(1)(b) of Cr.P.C and the remaining amount of Rs.2,500/- shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 18th April, 2011. V.K.MOHANAN, JUDGE pm