IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 Crl.Rev.Pet.No. 1338 of 2011() ------------------------------ ST.62/2009 OF JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM CRA.449/2010 of SESSIONS COURT, KOLLAM .................... REVN. PETITIONERS: ----------------------------- AKBAR SHAH, AGED 34 YEARS S/O.SHARASUDEEN, RESIDING AT PUTHU VEEDU IQUBAL NAGAR-87, VADAKKEVILA PO, KOLLAM. BY ADV. SRI.K.C.SUDHEER RESPONDENTS: ---------------------- 1. M/S SREE GOKULAM CHITS & FINANCE CO.PVT.LTD, HOTEL BRIGHT BUILDING,N.H.ROAD, KOTTIYAM,KOLLAM REPRESENTED BY ITS AUTHORISED REPRESENTATIVE,M.G.SUNILKUMAR,S/O.GOPALAKRISHNA PANICKER, AYYAPPA JYOTHI, PKP KAVALA, KUZHIMATHICADU PO, KOLLAM. 2. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY P.P. SMT. REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 1338 of 2011 --------------------------------------------- Dated this the 24th day of May, 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'), is the revision petitioner and the challenge in this Revision Petition is against the conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. Counsel for the petitioner submitted that the petitioner has no contention on merit but his grievance is with respect to the sentence imposed against him. It is the further submission of the learned counsel that the petitioner requires breathing time to compensate the complainant. Having regard to the facts and circumstances involved in this case, I am of the view that the said submission requires positive consideration. 3. It is relevant to note that the trial court as well as the Crl.R.PNO.1338 of 2011 :-2-: appellate court has held that the amount covered by the cheque in question is due to the complainant and the petitioner is directed to pay the said amount. Thus it can be seen that an amount of Rs. 2,61,970/- is due to the complainant, at least from the date of the cheque, i.e. 15.11.2006. The Apex court in the 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. Having regard to the facts and circumstances indicated above and in view of the above settled legal position, I am of the view that the sentence imposed against the revision petitioner requires reconsideration but at the same time, the interest of the complainant has also to be protected. In the result, this Crl.R.P. is disposed of confirming the conviction of the revision petitioner as recorded by the trial court as well as the lower appellate court. Accordingly, the sentence of imprisonment ordered by the trial court and modified by the appellate court is again modified and reduced into one day simple imprisonment, i,e. till the rising of the court. Crl.R.PNO.1338 of 2011 :-3-: In the light of the modification with respect to the sentence of imprisonment, 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. Accordingly, in addition to the modified sentence of one day imprisonment, the revision petitioner is also sentenced to pay a fine of Rs.3,04,500/- (Rs.Three lakhs four thousand and five hundred only) which shall be deposited within three months from today. In case of any default, he is directed to undergo simple imprisonment for a period of six months. Accordingly, the revision petitioner is directed to appear before the trial court on 24th August, 2011 to receive the modified sentence of imprisonment and to deposit the fine amount on the date of his appearance. 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 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 amount. On realisation of the fine amount, a sum of Crl.R.PNO.1338 of 2011 :-4-: Rs.3,00,000/- (Rs.Three lakhs only)/- shall be paid to the complainant as compensation under Section 357(1)(b) of the Cr.P.C. and the remaining amount of Rs.4500/- shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 24th August, 2011. V.K.MOHANAN, Judge. KVM/-