IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 21ST DAY OF DECEMBER 2011/30TH AGRAHAYANA 1933 CRRP.No. 2967 of 2011 ( ) ------------------------ CRA.528/2007 OF ADDL. DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC-II), KOZHIKODE ST.818/2006 OF SPL.JUDICIAL FIRST CLASS MAGISTRATE COURT (MARAD CASES), KOZHIKODE ------------------------------- PETITIONER / APPELLANT / ACCUSED : --------------------------------------------------------- SHAMEEMA, W/O. NASAR, THAIVACHA PARAMBIL HOUSE, NADAPURAM, KALLACHI P.O. BY ADVS. SRI.M.ASOKAN SRI.DEVAPRASANTH.P.J. RESPONDENT / RESPONDENT / COMPLAINANT AND STATE : --------------------------------------------------------------------------------------- 1. ABDUL SALAM N.V., S/O. MOIDEEN KOYA HAJI, 'VAZHAYIL HOUSE', KINASSERY, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA R1 BY ADV. SRI. ANWAR SADATH VADAKKENGARA R2 BY PUBLIC PROSECUTOR SRI. T.R. RAJESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...2/- CRRP.No. 2967 of 2011 ( ) APPENDIX PETITIONER'S ANNEXURE'S ANNEXURE - I : AFFIDAVIT FILED BY THE FIRST RESPONDENT. RESPONDENT'S ANNEXURE'S - NIL //TRUE COPY// P.S. TO JUDGE Mn S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.No.2967 of 2011 ----------------------------------------------- Dated this the 21st day of December, 2011 O R D E R Petitioner is the accused in a cheque case. Conviction of the accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}, by both the courts below is assailed in this revision, which was belatedly filed with a petition to condone delay of 992 days. Delay was condoned, after giving notice to the 1st respondent/complainant, and, later, on the representation made by both sides that the parties have settled the matter. 2. The revision coming up for consideration today, relying on an affidavit sworn to by the 1st respondent/complainant that the entire liability under the dishonoured cheque had been discharged by payment, the Crl.R.P.No.2967 of 2011 :: 2 :: learned counsel for the accused seeks setting aside of the conviction. No request for composition of the offence, as provided under Section 147 of the Act has been moved in the revision. Settlement effected by the parties, that alone, cannot be given any consideration, to relieve the convicted accused from the punishment imposed, that too where such conviction stands confirmed by the dismissal of his appeal as well. Probably, no composition petition has been filed to avoid payment of costs to the Legal Services Authority, which, necessarily, has to be fixed in view of the directions given by the Apex Court in Damodhar S. Prabhu v. Sayed Babalal {2010 (2) KLT 587 (SC)} to accept and recognise the composition made for an offence under Section 138 of the Act. However, the affidavit filed by the complainant Crl.R.P.No.2967 of 2011 :: 3 :: and the submission made by his counsel that the entire liability under the dishonoured cheque, which gave rise to the prosecution and conviction of the accused, has been discharged by payment, has to be taken note of in modulating the sentence passed against the accused. Cheque amount involved in the case is Rs.3 lakhs. Sentence imposed against the accused, as affirmed by the Sessions Judge in appeal, is simple imprisonment for one month with a direction to pay compensation of Rs.3 lakhs, the cheque amount, to the complainant with the default term of simple imprisonment for one month. 3. In view of the settlement effect with the complainant by payment of the sum covered by the cheque, the substantive term of imprisonment imposed against the accused can Crl.R.P.No.2967 of 2011 :: 4 :: be reduced to imprisonment till the rising the court, altering compensation to one of fine. Petitioner/accused has to pay the fine, as fixed hereunder, as part of the punishment, though a settlement has been effected with the complainant. 4. Affirming the conviction, the sentence imposed against the petitioner is modified and reduced to imprisonment till the rising of the court, with direction to pay fine of Rs.15,000/- with default term of simple imprisonment for one month. Petitioner is granted one month's time from today to pay the amount fixed as fine, to avoid the default term of imprisonment. Petitioner is directed to appear before the magistrate on 07.02.2012 to serve out the imprisonment till the rising of the court, and to report the payment of the fine. The magistrate Crl.R.P.No.2967 of 2011 :: 5 :: is directed to keep in abeyance the execution of the sentence till the date fixed for his appearance. In default of his appearance and non-payment of the fine, the magistrate shall execute the sentence, taking appropriate steps, in accordance with law. Revision is disposed of as indicated above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.