IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 Crl.Rev.Pet.No. 913 of 2011() ----------------------------- CRA.816/2009 of ADDL.SESSIONS COURT-III, KOZHIKODE CC.488/2007 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JOY PRAKASH, S/O.PRAKASHAN, KOMMATTIKULAM VAYAL, B.G.ROAD, WEST HILL(PO), KOZHIKODE TALUK. BY ADV. SRI.C.ARUN PRASANTH SRI.A.S.BRIJESH SMT.ROOPA RAMACHANDRAN RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. S.PUSHPA, D/O.FREDDY, POKKERTHODIPARAMBA KACHERI AMSOM, KURUMBAKATTUSSERI DESOM, WEST HILL P.O., KOZHIKODE TALUK. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.913 OF 2011 ------------------------------------------------- Dated this the 30th 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 31.01.2007, that too, for an amount of Rs.2,00,000/-. Though the courts below have concurrently found that the said amount is due to the complainant, so far no amount is seen paid to the complainant. Thus, as per the record and findings of the courts below, which Crl.R.P.NO.913 OF 2011 2 upheld by this Court, the said amount is with the revision petitioner for the last 3 years. 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. Accordingly, while granting some time to pay the fine amount, the interest of the complainant is also to be protected. Therefore, the fine amount can be enhanced slightly considering the fact that the cheque amount is due for the last three years. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I. Act. 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. As the sentence is reduced substantially, the direction to pay compensation is set aside and the revision petitioner is sentenced to pay fine and accordingly, the revision petitioner is sentenced to pay fine a sum of Rs.2,30,000/- and the petitioner is directed to pay the amount within three months from today in default he is directed to undergo simple Crl.R.P.NO.913 OF 2011 3 imprisonment for a period of two months. Accordingly, the revision petitioner is directed to appear before the trial court on 30.06.2011 to receive the sentence of imprisonment and to pay the enhanced fine as ordered 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 above date, 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.2,25,000/- 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 30th June, 2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm