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. 789 of 2011() ------------------------------------------- CRA.NO.127/09 OF ADDL.DISTRICT & SESSIONS COURT,FAST TRACK COURT I, THIRUVANANTHAPURAM. CC.NO.16/06 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I,ATTINGAL .... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- RAJEEV KUMAR, S/O. SOMARAJAN, MUKULAYATHU HOUSE, PUTHUPALLIKONAM MURI, CHARUMOODU DESOM, NOORANADU VILLAGE. BY ADV. SRI.RASHEED C.NOORANAD RESPONDENT(S): RESPONDENT/COMPLAINANT: ------------------------------------------------------------------------- 1. S.V. NISHA, D/O.RADHAMONI, GEETHA BHAVAN, REGHUNATHAPURAM, VARKALA PO, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY GOVT.PLEADER, HIGH COURT OF KERALA, ERNAKULAM. R2 BY 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: Kss V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.789 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. It is the further submission of the counsel that the petitioner is ready to compensate the complainant for which he requires some time, since the petitioner is arrested on 15.3.2011. Considering the facts and circumstances involved in this case, I am of the view that the said submission can be considered positively. 3. But, in this juncture, it is relevant to note that the cheque in question is dated 6.10.2003 that too for an amount of Rs.1,71,000/-. As per the findings of the courts below which approved by this court the said amount is due to the complainant but the same is being enjoyed by the revision petitioner for the Crl.R.P.NO.789 OF 2011 2 last 7 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. Considering the facts indicated above and the legal position settled through the above decision, I am of the view that the sentence of imprisonment ordered against the revision petitioner requires reconsideration and at the same time the interest of the complainant shall also to be protected. 4. In the result, the revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the NI 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 into one day simple imprisonment that is till the rising of the court. In addition to that, the direction to pay compensation ordered by the courts below is set aside and the revision petitioner is sentenced to pay fine of Rs.2,05,000/- within three months from today, in default he is directed to undergo simple imprisonment for a period of 4 months. 5. The learned counsel for the petitioner submitted that Crl.R.P.NO.789 OF 2011 3 the petitioner has already been arrested on 15.3.2011 and therefore, he may be ordered to be released on bail. Since this court reduced the sentence into one day simple imprisonment and imposed a fine of Rs.2,05,000/- and granted 3 months time for the payment according to me it is only just and proper to give an opportunity to the petitioner to pay that amount within the time stipulated by this Court. Accordingly, the court of Judicial First Class Magistrate Court-I, Attingal is directed to release the petitioner on bail on executing a bond for Rs.25,000/- (Rupees Twenty Five thousand only) with two solvent sureties each for the like amount to the satisfaction of the trial court and on further condition, the petitioner depositing a sum of Rs.55,000/- (Rupees Fifty Five Thousand only) within one month from today. In case, the petitioner deposit a sum of Rs.55,000/- as directed above, he need to deposit the remaining amount of fine within three months from today. If there is any failure from the part of the petitioner in depositing the entire fine amount as directed above the trial court is free to take coercive steps to execute the sentence and for realisation of the fine amount. On realisation of the entire fine amount as fixed by this Court, a sum of Rs,2,00,000/- shall be paid to the complainant as compensation Crl.R.P.NO.789 OF 2011 4 under Section 357(1)(b) of Cr.P.C. and the remaining amount of Rs.5,000/- shall be deposited in the State Exchequer. As this court has already reduced the sentence of imprisonment and granted time to pay the first instalment towards the fine amount after his release on bail. The Registry is directed to send a copy of this order to the Judicial First Class Magistrate Court-I, Attingal forthwith. V.K.MOHANAN, JUDGE pm