IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 Crl.Rev.Pet.No. 828 of 2011() ----------------------------- CRA.399/2007 of ADDL. SESSIONS COURT-II, MAVELIKKARA ST.203/2005 of JUDL. MAGISTRATE OF FIRST CLASS-II, HARIPAD .................... REVN. PETITIONERS: PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------- P.S.ALEXANDER, S/O.V.SAMUEL, PIANGOLIL, VADACKETHIL, AKAMKUDI MURI, PALLIPADU VILLAGE, KARTHIKAPPALLY TALUK. BY ADV. SRI.B.RENJITHKUMAR RESPONDENTS: COMPLAINANT & STATE: ----------------------------------- 1. MATHEW K.CHERIYAN, PROPRIETOR, KOSAMATTOM BANKER, ANUPAMA BUILDINGS, HARIPAD, REPRESENTED BY POWER OF ATTORNEY HOLDER D.SASIDHARAN PILLAI, AMBACKATTU HOUSE, NARI MURI, CHERUTHANA P.O., HARIPAD-690 514. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.J.THOMAS FOR R1 R2 BY P.P. SRI SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 828 of 2011 --------------------------------------------- Dated this the 24 rd day of March, 2011 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. As this Court is not inclined to interfere with the order of conviction, learned counsel for the revision petitioner submitted that the sentence imposed against the revision petitioner is exorbitant and unreasonable. It is also the submission of the learned counsel that sufficient time may be granted to the revision petitioner to compensate the complainant. Having regard to the facts and circumstances involved in the case, I am of the view that Crl.R.PNO.828 of 2011 :-2-: the said submission can be considered positively. 3. In this juncture it is relevant to note that the cheque in question is dated 9.8.2005, that too, for an amount of Rs.35,000/-. Though the courts below have concurrently found that the accused is guilty for the offence under section 138 of the NI Act, so far , no amount is seen paid. The Honourable Apex Court, in the decision reported in Damodar.S.Prabhu v. Sayed Babalal.H. [JT 2010 (4) SC 457], has held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. 4. Having regard to the facts indicated above and the settled legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner requires reconsideration, but at the same time, while granting time to compensate the complainant, interest of Crl.R.PNO.828 of 2011 :-3-: the complaint is also to be protected. In the result, this Criminal 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 trial court and confirmed by the appellate court is modified and reduced to one day simple imprisonment, i.e. till the rising of the court. In addition to that, the direction to pay compensation is set aide, and the revision petitioner is sentenced to pay a fine of Rs.43,750/- (Rs.fourty three thousand seven hundred and fifty only) within three months from today , in default, he is directed to undergo simple imprisonment for a period of two months. Accordingly, the revision petitioner is directed to appear before the trial court on 24th June,2011 to receive the modified sentence of imprisonment and to Crl.R.PNO.828 of 2011 :-4-: pay the fine amount fixed by this Court. In case of any failure on the part of the revision petitioner in appearing before the trial court on the above date to receive the modified sentence fixed by this Court and to deposit the fine amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence and to realise the fine. On realisation of the fine amount, a sum of Rs.43,000/-/- shall be paid to the complainant as compensation under Section 357(1)(b) of the Cr.P.C and the remaining amount of Rs.750/-shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 24 th June,2011. V.K.MOHANAN, JUDGE. kvm/-