IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 Crl.Rev.Pet.No. 760 of 2011() ----------------------------- CRA.210/2007 of SESSIONS COURT, KALPETTA ST.1263/2007 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.K.VASU, S/O.KELU, AGED 51, KONGIYAMBATH HOUSE, KARIAMBADI, MEENANGADI, PURAKKAD AMSOM, BATHERY TALUK. BY ADV. SRI.S.SUDHISH KUMAR SRI.S.MOHAMMED FEBIN RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. PURUSHOTHAMAN, S/O.BAHULEYAN, AGED 48, THANDAYANPARAMBIL HOUSE, AMBALAVAYAL P.O., SULTHAN BATHERY-673 593 PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.760 OF 2011 ------------------------------------------------- Dated this the 15th 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 16.06.2005, that too, for an amount of Rs.50,000/-. 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 upheld by this Court, the said amount is with the revision Crl.R.P.NO.760 OF 2011 2 petitioner for the last 5 years. The trial court imposed a sentence of 6 months simple imprisonment which was confirmed by the appellate court. 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, according to me, the sentence of imprisonment ordered by the courts below requires modification and when granting some time to pay the fine amount the interest of the complainant has also to be protected. Therefore, the fine amount can be enhanced slightly considering the fact that the amount is due for the last five 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 imposed by the trial court and confirmed by the appellate court is modified and reduced into one day simple imprisonment, i.e. till the rising of the court. While modifying the sentence of imprisonment as indicated above, the sentence to pay fine is also modified and the revision petitioner is directed to pay a fine of Rs.62,500/- within three months from today and in case of any default, the revision petitioner is directed to undergo simple imprisonment for a period of 45 days. Accordingly, the revision petitioner is Crl.R.P.NO.760 OF 2011 3 directed to appear before the trial court on 15.06.2011 to receive the modified sentence of imprisonment and to pay the fine as ordered by this court. If there is any failure on the part of the revision petitioner in appears before the trial court on the above date and depositing the fine amount, the trial court is free to take steps to execute the sentence and for realisation of the fine amount. On realisation of the fine amount a sum of Rs.60,000/- shall be paid to the complainant as compensation under Section 357(1)(b) Cr.P.C and the remaining of Rs.2,500/- shall be deposited in the State Exchequer. Coercive steps if any pending against the revision petitioner shall be deferred till 15th June, 2011. The learned counsel for the petitioner submitted that the petitioner has already deposited Rs.15,000/- in the trial court on 13.11.2007 on the basis of the order passed by the appellate court while suspending the execution of the sentence. If the same is correct and the said amount is retained in the trial court, the petitioner is entitled to credit of that amount and petitioner need to deposit only the balance amount of Rs.47,500/-. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm